author: Moore, C. J.

text:
    EBERLINE v. PRAGER.
    1. Bankruptcy — Fraudulent Concealment of Assets — Husband and Wife — Burden of Proof.
    On a bill by a trustee in bankruptcy against a bankrupt and his wife to recover assets from the wife, claimed by the trustee to be held by her in fraud of the bankrupt’s creditors, the burden of proof is upon defendants to show, by clear and satisfactory evidence, the means whereby the wife acquired the assets found in her possession.
    2. Same — Evidence—Sufficiency.
    Evidence examined, and held, insufficient to meet the burden of proof cast upon defendants, requiring a reversal of the decree of the court below in favor of defendants, and one entered here for plaintiff.
    Appeal from Wayne; Mandell (Henry A.), J.
    Submitted January 20, 1920.
    (Docket No. 23.)
    Decided February 27, 1920.
    Bill by Harry A. Eberline, trustee in bankruptcy, against Benjamin M. Prager and another to recover assets concealed in fraud of creditors. From a decree dismissing the bill, plaintiff appeals.
    Reversed, and decree entered.

      Fixel & Fixel, for plaintiff.

      Carey J. Cole, for defendants.
   Moore, C. J.

This suit was brought to recover assets which the trustee in bankruptcy of Benjamin M. Prager claims were concealed in fraud of his creditors. Mr. Prager "had been in business in Hamtramck, Michigan, wheré he failed with $7,870.51 in debts and $3,100.06 in assets. Shortly after his adjudication as a bankrupt a store was opened at 324 Michigan avenue, Detroit, Michigan. Mr. Prager’s wife claimed to own the new store. . The trustee charges that the' use of the wife’s name as the proprietor of the new store is a subterfuge and a fraud on Mr. Prager’s creditors, and that the assets in the new store aré assets fraudulently concealed from them. The trustee for the creditors therefore asks that a receiver be appointed to take charge of the assets in the new store for the benefit of Mr. Prager’s creditors. In disposing of the case the trial judge said in part:

“These various matters that are suggested now are matters that go to make the case a very puzzling one and a case that is difficult for possibly a correct decision.
“We have in the case, on the part of the plaintiff a lot of inferences, claims of improbability and certain presumptions that are claimed. As opposed' to that, there is testimony under oath, of at least four witnesses. Now to sustain the plaintiff’s case, the court would be obliged to find that the presumption, that the improbability of certain things following certain other events, would be much stronger than the direct and positive testimony of four witnesses.
“I don’t know that it would be tantamount that the court would be obliged to find that these four witnesses are lying or committing perjury, but its general effect would be that.
“The case is a very puzzling one. In a case of this kind, I would not feel like determining that these witnesses who testified to the capital furnished to start this business and carry it on, are absolutely falsifying.”

The chancellor dismissed the bill of complaint.

It may be well at the outset to state the rule of law which should control in cases like this, where the wife of the bankrupt, shortly after the bankruptcy, is in control of considerable property. It is said the burden of proof would be upon her to show, by clear and satisfactory evidence, the means whereby she acquired the assets found in her possession. 2 Moore on Fraudulent Conveyances, p. 896, reads:

“Sec. 5. Transactions between husband and wife. Purchases of real or personal property, made by the wife of an insolvent debtor during coverture, are justly regarded with suspicion, and in contests with creditors of her husband the general rule is that, if the wife claims ownership of the property by a purchase during coverture, the burden of proof is upon her to show affirmatively and distinctly that the purchase was for a valuable consideration paid by her out of her separate estate, or by some person other than the husband, or that she paid for it with funds not furnished by her husband. Such is the community of interest between husband and wife; such purchases are so often made a cover for a debtor’s property; are so frequently resorted to for the purpose of withdrawing his property from the reach of his creditors and reserving it for his own use, and they hold forth such temptations for fraud, that they require close scrutiny. In a contest between the creditors of the husband and the wife there is, and there should be, a presumption against her which she must overcome by affirmative proof.”

The same rule is stated in 6 Enc. of Evidence, p. 823:

“1. Presumptions and Burden of Proof. — Property purchased by wife during marriage. — In General. — If a married woman purchases property, the law, as a general rule, presumes that it was paid for with her husband’s'money, and one who would establish title in her has the burden of proving that the means were not furnished by her husband. As against existing creditors of her husband, ownership by a wife of real or personal property must be established by clear and satisfactory evidence, although the proof need not be so clear as to exclude all doubt, a preponderance of the evidence being sufficient.”

Keeney v. Good, 21 Pa. St. 349, reads in part as follows:

“The plaintiff is the wife of John M. Good who owned certain lands on which a distillery was built. Becoming insolvent in 1847, Good made an assignment for the benefit of his creditors. The assignee sold the land to one Rheem for $1,100 and by Rheem it was subsequently conveyed to Mrs. Good, the present plaintiff, for the consideration of $1,500. Of this sum $50 were paid at the time the deed was made, and the bonds and mortgage of both husband and wife were afterwards given for the balance. About $1,000 of principal and interest seems to have been paid on the bonds. Immediately after the deed to Mrs. Good, she and her husband made a written agreement that the husband should carry on the business of farming and distilling in her name, accounting to her for the profits, and receiving from her wages at the rate of $20 per month. While he was doing business under this agreement, he bought a lot of hogs, brought them to the distillery, and fed them there for a time. The defendants levied on them as the husband’s property, and the wife brought this action of trespass.
“Upon these facts the defendants asked the court for peremptory charge in their favor. This the court refused, but on the contrary submitted the case to the jury, with instructions to find for the plaintiif if the agreement was an honest one, made for the purpose of enabling an insolvent man to support his family, and if the first $50 was paid with the wife’s money, and the balance out of the profits of the business.
“An insolvent man is well protected in Pennsylvania. The barbarous system of imprisonment for debt is totally abolished and thrown aside among the rubbish of the dark ages. He can retain real property or goods to the value of $300 which his creditors may not touch. He cannot be prevented from applying the fruits of his personal industry to the maintenance and education of his family; for the wages of his labor are not liable to attachment. But after supporting his family, he must give the best exertion of his mind and body to his creditors. This is but his reasonable duty — a duty sanctioned by all laws, moral, civil and divine. No effectual mode of evading it has yet been invented. The usual device of covering the property of the debtor under the name of some friend, or. a member of his family, will only answer the purpose as long as it remains undiscovered. I need not say how deeply all such shams are branded by the law with the marks of its detestation.
“Creditors may regard the mere possession and use of personal property by a debtor as evidence that no stranger has a right to it, unless it has once already been taken for his debts, and bought in for him at a judicial sale, or unless he has it as a borrower or other bailee. But by the act of 11th April, 1848,, a married woman may have property in her own right which shall not be subject to levy for her husband’s debts. Of such property possession is no test of title. The rule in Twyne’s Case cannot, in the nature of things, be applied to a wife’s goods in favor of her husband’s creditors, without either compelling a separation or rendering the law inoperative. He may ride in her carriage, eat at her table, sleep in her bed and live in a house filled with her furniture, without making what he uses liable to be seized under an execution issued against him. * * *
“But there is nothing in the act of 1848 which makes such consequences at. all necessary. To bring the property of a married woman under its protection, it is made necessary by the letter, as well as the spirit of the statute, to prove that she owns it. She must identify it as property which was hers before marriage, or show how she came by it afterward. Evidence that she purchased it amounts to nothing unless it be accompanied by clear and full proof that she paid for it with her own separate funds. * * *
“We are unanimously and clearly of opinion that the defendants had a right to the instructions they prayed for. They were as well entitled to a verdict as if tike plaintiff had given no evidence at all.”

In Wimberly v. Fertilizer Co., 132 Ala. 107 (31 South. 524), it was said:

“When assailed by them (the husband’s creditors) the burden is on the wife of proving that the consideration did not move from the husband but was paid by her separate money. Kelley v. Connell, Green & Co., 110 Ala. 543 (18 South. 9). ‘To the lifting of such burden, affirmative averment of the facts relied on as constituting the consideration is as essential as convincing proof of their existence.’ The laboring oar in such case is upon defendant, not simply to deny that there was no consideration, as averred in the bill, but to state the affirmative fact, that there was such consideration, in what it consisted and how it was paid, and to support these averments by evidence.
“Furthermore, Tn a contest between creditors and the wife, there is, and there should be a presumption against her which she must overcome by affirmative proof.’ Seitz v. Mitchell, 94 U. S. 580; Kelley v. Connell, Green & Co., supra; Wood v. Riley, 121 Ala. 100 (25 South. 723).”

The defendants do not seriously dispute the law of the ease but say they have fully met the burden put upon them, satisfying the chancellor in the court below, and that upon this record we ought not to disturb his decree. The case was tried in open court and we are not unmindful of the fact that the opportunity to see the witnesses gives the trial judge a great advantage over the Justices of this court in deciding' questions of fact. Hammond v. Rathbone, 113 Mich. 499. The trial judge, however, seemed to be in great doubt as to what decree he ought to find.

There are some facts that are not in dispute. Mr. Prager, in April, 1917, opened a store in Hamtramck. Mrs. Prager assisted him in the store. In June, 1918, he filed a voluntary petition in bankruptcy showing assets of $3,100.06 and liabilities of $7,870.51. As early as in the following August a store was opened on Michigan avenue, Detroit, his wife claiming to be the proprietor. He acted as the buyer of the goods that went into, the store and assisted her in and about the store. It is her claim that with the exception of the goods which were exempt to Mr. Prager, valued at $250, none of his goods ever went into the store. It is her claim that a sister living in Cleveland gave her $200 with which she bought some of the fixtures formerly owned by Mr. Prager, at the bankrupt sale, and she further claims that one day she met on the streets of Detroit Mrs. Biederman, who was a girlhood friend of hers in Vienna, Austria, whom she had not seen for 22 years, and that she confided her troubles to Mrs. Biederman, who finally loaned her $2,000 which she handed over to her husband to buy goods for her, and that he was a very skillful buyer, who bought job lots of goods which were put into the store and sold at a profit of from 100 to 150 per cent., with the result that within six or eight weeks after she borrowed the money in August she had paid the $2,000 loan in full, and in the following January paid $570 in cash for an automobile, and had a stock of goods on hand. In the meantime her family of five children she claims was supported out of the proceeds of the business. Mr. and Mrs. Biederman were witnesses who gave testimony tending to support Mrs. Prager’s claims.

We quote some of Mr. Biederman’s testimony:

“My name is Morris Biederman. I am 40 years old and am a jeweler. Have lived in Detroit 12 years. I just met Mrs. Prager, you know, when she called for the money. My wife came down town, down to the store and she told me she met her friend she had not seen for many years, and that she was asking her for some money. I asked how much it would be. She said $2,000. I said, 'My God, I can’t spare $2,000.’ She said that she had got the money. I told her, you know, if she has got the money let her give it. I was surprised when she handed the money. I was there when the money was turned over to Mrs. Prager. They signed a paper. I made it out; Mrs. Prager signed it. Every time that the payment was made, it was endorsed on the back of the note. The note was finally paid in full.
“Q. About how long did Mrs. Prager take in paying you?
“A. I think the last payment was by the end of September. I made it out 60 days. It was paid before or at the time it was due.”

On the cross-examination he testified in part:

‘'I never knew this woman. She did not tell me her husband was bankrupt. I did not know he was bankrupt from what my wife told me. I knew it after I loaned the money. I knew my wife had some money. I didn’t know that she got $2,000. I didn’t figure it amounted to anything. ' I didn’t know what she has got today. I didn’t know that she had this $2,000. I kept my money in the savings and checking account.
“Q. And had a safe in the store?
“A. Yes.
“Q. Where did you keep your jewelry, all of your valuable watches and things that you put away every night — in the safe?
“A. Yes.
“Q. And your wife helped you occasionally in the store?
“A. Yes.
“Q. Knew you had the safe, knew the combination?
“A. Sure, sure. * * *
“Q. But the money stayed upstairs somewhere in the house?
“A. Yes; I didn’t know how much money she had. I was present when the money was counted out to Mrs. Prager. It was different money, big and small. When she paid me — give me the payment — I would mark it on the back of the note and the date. The amount and the day. I don’t remember how many of these endorsements there were.
“Q. How much was the first one?
“A. I couldn’t tell you.
“Q. What was the date of the first one?
“A. I don’t remember.
“Q. Have you got a record at the store?
“A. No, sir.
“Q. When they paid you the payment, what did you do with the money?
“A. Kept it.
“Q. Kept it in the .safe or put it back upstairs where it was in hiding?
“A. I kept it in the safe.”

Mrs. Prager and Mrs. Biederman told substantially the same story as did Mr. Biederman, but with many inconsistencies. The Pragers made written statements to the commercial agencies that cannot be harmonized with their present claim. They seemed unable to tell where job lots of goods were bought in any considerable quantities, while evidence was introduced on the part of the plaintiff that during the last half of the year 1918, and the early part of 1919, it was difficult to find job lots for sale, and especially difficult to buy them upon terms that would allow any considerable profit.

We are asked to believe that Mrs. Biederman had saved without the knowledge of her husband upwards of $2,000 which she kept upstairs in a stocking or in her bed mattress, and that she loaned it with the approval of her husband to her girlhood friend without any security, and with only a note given back, and that this note was paid in full with the profits of the business which it established within 60 days of its date, and when paid the note was tom up, making it impossible to produce it at the trial. If the defendants’ evidence is believed Mr. Prager In 17 months’ business in Hamtramck so managed as to lose more than $5,000, while in half that time, while acting for his wife, who in addition to looking after the business, also looked after the household of five children, developed a business of the same kind on Michigan avenue, so that it showed a profit of much more than $5,000. We have examined with care the' documents offered in evidence and have weighed carefully the oral evidence and think the defendants have not met the burden of proof which the law puts upon them.

The decree is reversed and one may be entered here in accordance with the prayer of the bill of complaint, with costs to the plaintiff.

Steere, Brooke, Fellows, Stone, Clark, Bird, and Sharpe, JJ., concurred.


source: Caselaw Access Project

author: Moore, C. J. BROOKE, J.

license: Public Domain

text:
    NICHOLS v. GRAND TRUNK WESTERN RAILWAY CO.
    1. Trial — Conflicting Evidence to go to Jury.
    Where there is a sharp conflict of testimony upon every important question of fact, the trial judge should not usurp the functions of the jury and direct a verdict for either party.
    2. Railroads — Personal Injuries — Question for Jury.
    In an action against a railroad company for personal injuries received by plaintiff when his automobile was struct at a public crossing- by defendant’s locomotive, evidence held, to present questions of fact for the jury.
    3. Appeal and Error — New Trial — Great Weight of Evidence.
    It is only where the verdict is clearly against the great weight of the evidence that the Supreme Court will overrule the trial court and grant a new trial.
    Brooke and Clark, JJ., dissenting.
    Error to Cass; Des Voignes (L. Burget), J.
    Submitted January 14, 1920.
    (Docket No. 72.)
    Decided February 27, 1920.
    Case by Sylvester N. Nichols against the Grand Trunk Western Railway ‘ Company for personal injuries. Judgment for plaintiff. Defendant brings error.
    Affirmed.

      Harrison Geer (H. R. Martin, of counsel), for appellant.

      Walter C. Jones and Thomas J. Cavanaugh, for appellee.
   Moore, C. J.

This is a personal injury case growing out of a collision between an automobile owned by the plaintiff in which he was riding, and defendant’s locomotive. He was quite severely hurt. He recovered a substantial judgment and the case is brought here by writ of error. The wife of the plaintiff was injured in the same accident. She sued and recovered a judgment which was affirmed in this court and is reported in 203 Mich. 372.

It is the claim of the plaintiff that his son was driving the automobile of the plaintiff in which the plaintiff and his wife were seated; that they were going south on Center street where they stopped and an east-bound freight train passed. It is further claimed that after listening and looking the automobile was started across the track and that almost instantly thereafter it was struck by a train consisting of a locomotive, tender and caboose running as a special at 30 miles an hour without ringing its bell or blowing a whistle.

It is the claim of the defendant that the driver of the automobile was guilty of contributory negligence as a matter of law; that the train was running at a lawful rate of speed, and that the proper signals of the. approach of the train to the crossing were given. At the close of all the testimony the court was asked in writing to direct a verdict in favor of the defendant. The trial judge declined to do this and submitted the case to the jury in a charge covering more than 20 pages of the printed record. The jury returned a verdict in favor of the plaintiff in the sum of $2,800, upon which judgment was entered. The defendant then moved for a new trial which motion was overruled, and the defendant has brought the case here for review.

It is the claim of plaintiff that the case now presented is more favorable for the plaintiff than was the case of Ida Nichols against this defendant, supra, and that the judgment in this case should be affirmed. Counsel for defendant says this record is quite different from the record in the former case and that the judgment should be reversed.

Counsel says that the facts are materially different from the facts contained in the Ida Nichols Case,

“'and I will proceed to state why they are different. Fred Forsythe and Henry Truesdale were examined as witnesses in the Ida Nichols Case, but were not examined as witnesses on the trial of the present case, nor is there anything contained in this record to show why they were not produced as witnesses. If the testimony that was given by the above named > witnesses in any way induced the result of the decision in the Ida Nichols Case, certainly that testimony cannot be taken into consideration in disposing of this case on the present record. To that extent there is a difference between the records in the two cases.”

Counsel then analyzes the testimony of the witnesses to show he is right in his contention. We again quote from the brief:

“When you come to compare and consider the question whether the giving of the signals by the engineer-on the train that collided with the automobile, with the testimony offered on the part of the defendant-with relation to the giving of these signals, I confidently submit the testimony is overwhelmingly in favor of the defendant. This testimony certainly is no defense to pur contention that the great weight of the evidence is in favor of the defendant that the statutory signals were given at or near the defendant’s station. See the names of the witnesses who testified to the giving of the signals, ten in all, I think, who testified positively that the statutory signals were given at or near the depot. If the court reaches the conclusion, that the testimony of the plaintiff and his witnesses was sufficient to carry the case to the jury, still, we insist on this record that the testimony is overwhelmingly in favor of the defendant that the statutory signals were properly given at or near the defendant’s station.”

Counsel discusses at length the testimony as to the location of the car on the siding which is said to have obstructed the view of the occupants of the automobile. We again quote from the brief:

“As to the location of this car at the time of the collision, I submit with the greatest confidence that on this record this court must reach the conclusion that the testimony of the defendant overwhelmingly outweighs the testimony offered on the part of the plaintiff, and some besides. This question was not and could not have been considered in the Ida Nichols Case, because there was no proof in that record in relation to how cars were placed upon and taken off the mill track. * * *
“In the trial of this Ida Nichols Case, I did not suppose the box car standing on the mill track would be considered, except as an obstruction to one about to cross the railroad tracks, the same as though it had been a permanent structure. I thought this case controlled by the Sanford Case [190 Mich. 390]. I thought the only question that would be considered by this court would be, Was the driver of the automobile guilty of negligence in driving 18 or 19 feet with a clear view to the east after passing the box car where he could see an approaching engine for 1,000 feet? Not until after the decision in the Ida Nichols Case was handed down, did I suppose this court would hold that the driver of the automobile was or might be in danger of the box car backing up, if he had stopped his automobile while passing over the mill or sidetrack.
» “To overcome this inference, on this trial, we have made full and complete proofs, showing that all cars placed upon this mill track had to be put in from the west end, and that all cars that were taken off this mill track, the engine would go in on the west end of the mill track and remove loaded or empty cars from this mill track. With these full and complete proofs in this record and no such proofs in the Ida Nichols Case having been made, we claim that this case should be disposed of on this record, and not controlled in any way by the Ida Nichols Case. The proofs in this case demonstrate to a certainty, that the driver of 'the automobile was in no way in danger from the car that was standing upon the mill track backing up.”

This argument overlooks the fact that there is nothing in the record to show that the driver of the car knew that the siding did not connect with the main track at each end of the siding.

Counsel discusses at great length the testimony as to the location of the tracks, the obstructions to the view and the opportunities of the driver of jhe automobile to see an approaching train. We again quote from the brief:

“On my oral argument, I called the court’s attention to the testimony of the ne,w witness, Day, who was produced for the purpose of corroborating the testimony of the plaintiff that the statutory signals were not given and the crossing bells were not rung just before the collision took place. This witness testified that he drove up on the north side of the Conklin mill, got his grist and then drove west from the mill to Center street, which is shown by the testimony of Reynolds, the engineer, to be about 100 feet * * * After Day arrived on Center street he turned south and drove somewhere between 40 and 50 feet before he arrived at the sidetrack in question, during all the time he was driving west from the mill to Center street, and then south on Center street until after the collision, Day neither saw plaintiff nor did Nichols, the plaintiff, see him so far as this record discloses. Day states he drove his team onto the north main track, when his team took fright, as he states, by seeing the approaching train from the east down by the sawmill, the exact distance from Center street not being shown.” * * *
“Just as I got on the track I observed an engine or train coming from the east. It was then down the track somewheres by the sawmill, that is east; I call it east, anyway.
“Q. Did that train blow any whistle?
“A. Did not.
“Q. Ring any bell?
“A. No.
“Q. Were there any crossing bells ringing?
“A. Not when I was there. * * * When I got on the railroad track I looked around and seen that engine coming and I looked around to see if there was anybody behind me, and I seen a car back there. When I first discovered a train, I was right on the railroad track. This engine at that time was down the road, east, I call it, down toward the station. This engine that was approaching from the east at that time, was somewheres along in there by the sawmill, or might have been a little east of the sawmill. It was right in there somewheres. It wouldn’t be ahead of me, between me and the station. I don’t know how many feet from me, I never measured it. A man could guess at it, but no use guessing at it. Sure I got across the track ahead of the engine. * * * Sure I succeeded in getting across both tracks. Before the car got there, I had gone south when the car came along and collided, about half a block, I guess. * * *
“Q. I don’t know as you spoke about the bell?
“A. No.
“Q. You didn’t pay any attention to that?
“A. I didn’t hear none, I said.
“Q. That is as far as you would state?
“A. No, I said it-wasn’t ringing.
“Q. You mean on that engine?
“A. Wasn’t no bell ringing at all nowheres as I could hear of.
“Q. Well, wasn’t you a little frightened?
“A. No, I wasn’t scared; the horses was scared. I did not see any person around the cars there, any-wheres. I didn’t even know who it was that was in the automobile behind me. I didn’t even see the accident, I didn’t really see it, only as I heard the noise when they came together. I wasn’t very far away from them. I could not have been, because I hadn’t been over a half a block when the accident occurred, when the collision occurred. That is my recollection. I was not examined on the other trial.”
“After his team came onto Center street, he did not drive more than 50 or 75 feet at the outside before he discovered the engine coming from the east. We ask, Where was Nichols, the driver of the automobile? If what Day says is. true, Nichols, the driver of the automobile was only a short distance behind him, while he was driving the 50 to 75 feet south to the track. * * * If this testimony of Day’s is true, it conclusively shows that the driver of the automobile never stopped 10 feet north of the sidetrack to let the way-freight cross Center street, before he attempted to drive across. The testimony of Day, if accepted as being true, only aids in demonstrating to a certainty that the testimony of Nichols, the plaintiff, in relation to his having stopped for the local freight to pull across Center street is not true.”

Counsel for the appellee insist that when all of Mr. Day’s testimony is read it not only tends to show that no bell was rung or whistle blown, but is corroborative of the fact that plaintiff’s driver had stopped, looked and listened “when I got on the railroad track I looked around and seen that engine coming and I looked around to see if there was anybody behind me and I seen a car back there.”

Counsel concludes his supplemental brief:

“I submit on this record, it 'is the duty of this court to set aside the judgment:
“First: Because the evidence clearly discloses that the defendant discharged its duty by the giving of the statutory signals and the ringing of the crossing bells, and
“Second: The evidence clearly demonstrates and shows that the driver of the automobile was guilty of contributory negligence.
“If however, the court does not agree with my contention, then I submit the judgment is contrary to the great and overwhelming weight of the evidence, and should be set aside.”

Counsel has been so insistent in his contention that defendant should have a directed verdict that we have taken unusual care to read all of this voluminous record. In the case of Ida Nichols v. Railway Co., supra, there were 16 witnesses sworn on the part of the plaintiff, and in this case there were 20 sworn. In the former case there were 11 witnesses sworn on the part of the defendant, while in the instant case there were 15 sworn in its behalf. In the trial of this case it is evident counsel on each side tried their case with even more care than was done in the trial of the Ida Nichols Case. In each trial there was a sharp conflict of testimony upon every important question of fact. Unless the judge is to usurp' the functions of the jury he could not direct a verdict for either party.

The remaining question for consideration is, Should the verdict and judgment be set aside because against the weight of the testimony? The trial judge who heard and saw the witnesses expressed himself when he overruled the motion for a new trial that the verdict was not against the weight of the testimony. In the recent case of O’Dell v. Straith, 208 Mich. 497, Justice Stone, speaking for the court, said:

“It is only in a clear case that this court will overrule the judgment of the trial court upon the question of the weight of the evidence.”

See Gardiner v. Courtright, 165 Mich. 54; Fike v. Railroad Co., 174 Mich. 167; Druck v. Antrim Lime Co., 177 Mich. 364, and Pachuczynski v. Railway, 202 Mich. 594.

The judgment is afflrmed, with costs to the plaintiff.

Steere, Fellows, Stone, Bird, and Sharpe, JJ., concurred with Moore, C. J.

BROOKE, J.

I adhere to my views as expressed in Nichols v. Railway Co., 203 Mich. 372. The judgment should be reversed.

Clark, J., concurred with Brooke, J.


text:
      In re ESTATE OF MAGNUS. MAGNUS v. McGREGOR.
    Wills — Evidence to Establish Will — Suittoiency.
    In a will contest case, on appeal to the circuit court from the allowance of the will in the probate court, evidence held, sufficient to show that testatrix knew what she was doing, was satisfied with the will as drawn, declared it to he her last will, and asked that it he signed and witnessed as such, and that the requirements of the statute (3 Comp. Laws 1915, § 11821) were met.
    Error to Saginaw; Snow (Ernest A.), J.
    Submitted January 8, 1920.
    (Docket No. 44.)
    Decided February 27, 1920.
    Ernest Magnus presented for probate the last will and testament of Wilhelmina Magnus, deceased. The will was allowed in the probate court, and Elsie McGregor appealed to the circuit court. Judgment for proponent. Contestant brings error.
    Affirmed.,

      E. L. Beach and R. L. Crane, for appellant.

      Otto & Davis, for appellee. ',
   Moore, C. J.

This is a will contest. The contestant introduced no evidence. At the conclusion of the testimony offered on the part of the proponent both' parties asked for a directed verdict.

The claim of the contestant was stated as follows:

“We request the court to direct the jury to return a verdict that this was not the last will and testament of the deceased. The testimony affirmatively shows that the testatrix did not know the contents of the will as she did not dictate it, neither was it read to her nor by her, but the testimony in this case shows that she was not acquainted with- its contents after the same was drafted. * * * The burden of the proof is upon the person offering the will, and the testimony offered in this case shows affirmatively and beyond any question of doubt that at the time when it is claimed that this will was signed that Mrs. Magnus was not acquainted with the facts- in the will.
“The testimony in this case is that after the will was prepared by Mr. Devereaux they all went into the room, nothing was said, and it was signed and witnessed as the witnesses claim, but there is nothing to show that she knew the contents of that will at the time it was signed, and the presumption is in this case that she must have known the contents of the will, but it is affirmatively proven she did not know what it was. Not read to her or by her. We ask the court to direct the jury to return a verdict for the contestant.”

The judge declined to direct a verdict in favor of the contestant and charged the jury in part as follows:

“Gentlemen of the jury, this is a matter brought to this court on appeal from the probate court of Saginaw county.
“Wilhelmina Magnus on the 26th day of May, 1917, signed an instrument which purported to be her last will and testament. About a month subsequent to the time of her signing .that instrument, Mrs. Magnus died and the will was later offered for probate in the probate court for Saginaw county, and objections were filed to the offering of the will, and this matter was heard and determined by the probate judge, and the will was allowed as and for the last will and testament of Mrs. Magnus. * * *
“The proponent of the will is Ernest Magnus who is one of the heirs- at law, the devisee under the terms of the will, by his. counsel makes proof of the execution of the will, and produced the attesting witnesses, and you have heard the testimony of these witnesses upon the trial of the case.
“At the close of the testimony of the proponent of the will, the contestant, Mrs. McGregor, through her attorneys, moved the court for a directed verdict in favor of the contestant and against the allowance of the will, claiming that among other things that there was no evidence that Mrs. Magnus understood the provisions of the will, and that as a matter of fact the will was not read over to her, and that any presumption that might exist by reason of the attestation clause or the proper execution of the will, was overcome by the testimony in the case which the contestant claims shows that Mrs. Magnus did not know the contents of the will. This motion was denied by the court it being the judgment of the court that there is no testimony in this case that warrants the conclusion claimed for by the contestant.
“The will was properly executed, and that any presumption that attaches that she knew the contents of the will, or it was read over to her, which follows the proper execution of the will, has not been overcome by testimony in the case. There is absolutely no testimony in this case that this will was not read over to her, or that she did not know the contents of the will. And the contestant has no proof that has so far been introduced in the case upon which to base her contention that that will was not understood or that it was not read to Mrs. Magnus before the testatrix executed it. On the contrary the conditions were such surrounding the execution of the will, and the proper execution of the will, of such a character that the presumption attaches that she did know the contents of the will, and that it was read over to her. There is no proof in this case to the contrary in the judgment of the court.”

Thereupon the jury rendered a verdict in accordance with the instructions of the court sustaining the will.

The contestant now claims:

“(1) The court erred in not submitting the case to the jury under proper instructions.
“ (2) The record clearly shows that it was impossible for the deceased to have known at the time she asked Mr. Devéreaux to sign her name to the claimed will, its contents and the court’s decision that it was her last will and testament, and its execution established under this record, is contrary to the facts and law in the case, and he committed error therein.”

The will in controversy was drawn by a reputable attorney who unfortunately died before the will was offered for probate. The other two witnesses testified in relation to the execution of the will by Mrs. Mag-nus ; we quote from their testimony.

Ada Kent testified in part as follows:

“I signed my name to the paper three different times. After Mr. and Mrs. Ernest Magnus got through with their dinner I went into the bedroom and talked with Mrs. Magnus, his mother, a little while. I couldn’t say how long, a few/minutes, when I went out to go home. Went back'into the kitchen and she asked Ernest to have me‘"come in there. I went back into the room. She asked me if I would wait a little while and witness her will. I said I would, and I went back into tne kitchen and waited until I was 'called in the room. It might have been half an hour before I was- called again, or a little longer. I couldn’t say who called me. I went back into the room. In the meantime Mrs. Bounds had come over. Mrs. Bounds, Mr. Devereaux and I went into the bedroom where Mrs. Magnus was.
“Q. How did you come to sign your name on this paper? Explain it to the jury.
“A. Well she was to sign her name. She said ‘My arm is lame.’ She asked Mr. Devereaux to sign her name as her arm was shaky and couldn’t. Mrs. Bounds was present. Mr. Devereaux then signed her name. When she told Mr. Devereaux to sign her name he said ‘All right.’ He signed her name and signed his own name. I saw him.
“Q. What if anything was then said to you?
“A. I sat on the edge of the bed somewhere. It was quite a small room. - Mrs. Bounds, I think, signed her name. I signed. Mrs. Magnus asked her if she would sign it. * * * My name appears on page 3 under the head of witness. I signed it at the request of Mrs. Magnus. I put my name there in the presence of Mrs. Bounds and Mr. Devereaux and Mrs. Magnus. She was there all the time. She asked me to witness her will. She didn’t say anything more. Mr. James P. Devereaux signed his- name at the bottom of the page on line 25. On line 28 of the third page and then also on the first page I signed the same. Mr. Devereaux and Mrs. Bounds signed their names. I saw Mr. Devereaux sign his name on the side, as it appears here. I also saw Mrs. Bounds siga her name. * * * I went over there the day in question about one o’clock after we had our dinner. Ernest and his, wife were eating dinner when I got over there. There was no one else in the kitchen but Mr. and Mrs. Magnus and the children. Mr. Devereaux was in the dining room writing. The bedroom is off from the dining room. I went from the kitchen into the dining room and into' the bedroom and went from the bedroom into the dining room back into the kitchen. I never met Mr. Devereaux before.
“Q. Did you know that Mr. Devereaux was preparing any paper for Mrs. Magnus to sign?
“A. I didn’t, but I thought that must be what he was doing. I thought he must be doing something, writing there. ■ He was a stranger to me. I had not learned that she was having a will prepared and I was not invited over there to witness a will.
“Q. You had an idea before you saw him he was preparing a will?
“A. Yes, he was. writing. I didn’t know what he was doing. He didn’t talk to me at all.
“Q. Why did you think Mr, Devereaux was preparing a will?
“A. I don’t know; only what I judged.
“Q. Mr. Devereaux went in the bedroom first, didn’t he?
“A. I don’t know when he went into the bedroom.
“Q. Did you get there before Mr. Devereaux came there?
“A. Mr. Devereaux was there when I got there. He was preparing this paper when.I got there. I went into the kitchen, was there a few moments where they were eating. Ernest asked me to go in and see his mother and I did.
“Q. Did you see him writing after you got in there?
A. He sat there at the table writing. I went into the room where Mrs. Magnus was before I was invited to sign the paper.
“Q. How long did you go into ^the room and stay there before Mr. Devereaux came in?
“A. I went into the room, stayed a few minutes and talked with her. Maybe fifteen minutes. I was inquiring about her condition and she was telling me about her arm. She told me she had been sick a few days. She said she was getting better. I didn’t know what the trouble was, but I rubbed her arm for a while while I sat there. It was her right arm. She was lying on the bed; she was dressed, but she was lying there covered up. She didn’t get up while I was there. During the time Mr. Devereaux was preparing this paper Mr. Magnus, the son, went into the bedroom. He didn’t stay there at all. She spoke to him and he went in there, then he came out and said moth-> er wants me to come in there. I went in there and' she asked me if I would stay awhile. When she spoke to him he was right by the dining room door, out near the kitchen. She said ‘Ernest’ that is what I heard ‘Tell Mrs. Kent to come back.’ I went back into the room and she asked me if I would not come back, wait a little while and witness her will. I said I would. I didn’t stay in the bedroom. It was two or three minutes afterwards when they notified me to come in there.
, “Q. Was Mr. Devereaux in the bedroom before you went in there?
“A. I couldn’t say. He was in the dining room when I left the dining room and went into the kitchen.
“Q. Where was Mr. Devereaux when you went back there to witness the will?
“A. Right there in the room. Right near the bedroom door. I couldn’t say whether he was doing any writing at that time or not. He was not talking with anyone when I saw him.
“Q. When you went into the room to witness the will, tell us who was in there first.
“A. I don’t know whether it was, Mrs. Bounds or myself. There was a little stand in there where we wrote our names. She didn’t have the pen in her hand. She asked him to write her name; she was so shaky.
“Q. When she said she wanted him to write her name, that is all you heard her say in the room while you were there, about this will?
“A. I wouldn’t say whether it was all she said or not.
“Q. Did Mr. Devereaux say anything while he was in the room?
“A. I don’t know as he did anything more than sign her name. I don’t remember as there was anything said, only about signing of the name.
“Q. All you heard while you were in the room there was ‘Mr. Devereaux, I would like to have you sign my name.’
“A. I don’t know as she said it just like that. Yes, in substance it was. All that was talked was about signing the name. She asked him to sign her name and she couldn’t sign her name on. account of her arm. She asked me if I wouldn’t witness the paper.
“Q. You have told us what was said by you and Mr. Devereaux, Mrs. Bounds and Mrs. Magnus, haven’t ¡you? If there is anything more she said there in ¡reference to that will you tell us?
I don’t remember as there was much of anything. said in regard to the will; that there was anything’said.
“Q. The will was not read over in her presence, was it? ■
“A. -No, sir.
“Q. The will was all prepared when you went back into this room?
“A. I suppose it was prepared. I didn’t prepare it.
“Q. Was that paper written up when you went back in the room or before?
“A. He prepared it before he went into the room.
“Q. So you didn’t know anything about what was in the paper?
“A. No, sir.
e‘Q. It was not read to you and Mrs. Magnus didn’t say anything about what was in the will?
“A. No, sir.
“Q. When you were in there talking to his mother, you could see Mr. Devereaux? The door was left open?
“A. Yes. I did see him.
“Q. Did you stay in the bedroom visiting with the mother about fifteen minutes?
“A. He was doing this, writing at that time. I; went out and stayed about two minutes and then went back again. She told Ernest to come back into, the room and I went back and it was about two minutes before I went out. The bedroom door was not closed. It was open. The bedroom door was not closed when I heard Mrs. Magnus talk with Ernest and told me to come back.
“Q. Mr. Devereaux didn’t have time to read over that paper to Mrs. Magnus from the time you went out there in the kitchen before you went back again, did he?
“A. I don’t know.”
Sarah Bounds testified in part:
“Mr. Magnus came over to our house and asked me if I would come over to his house as his mother wanted to see me and I went over. It was in the afternoon between one and two o’clock. When I entered the house I went into the dining room. There is an outside door leading into this room. I was over in the morning to see her. I just opened the door- and walked right in. I was used to going there. I saw Mr. Devereaux there. I never saw him before. I was introduced to him by Mr* Magnus. I went into the bedroom and talked with her. She was lying on the bed, her clothes on; partly covered with clothes. When I went into the bedroom there was no one there.
“Q. Did you talk with her?
“A. I did. * * * I stayed there . until they
asked me to. go into the bedroom. Mrs. Magnus asked me when I was in there if I would sign her will. She said Mr. Devereaux was, making it out and that it was her last will.
“Q. What did you say then?
“A. I told her yes. I would sign it.
“Q. Did you sign it?
“A. Yes, I did. * * *
“Q. I will ask you whether you heard any talk between Mrs. Magnus, and Mr. Devereaux about the will.
“A. I didn’t. There was no one in there but Mrs. Magnus, Mr.' Devereaux, myself, and Mrs, Kent.
“Q. Then do you recall as. to who got into the bedroom first?
“A. I couldn’t say. I saw Mr. Devereaux sign the will. Mrs. Magnus told him that her arm was. lame and her hand shook so she could not sign it and asked him If he would sign it for her; so he signed it. It was in her presence. Mrs. Kent was present at that time. * * * Mrs. Magnus didn’t say anything to us what the paper was, only asked me if I wouldn’t sign her will and I did sign the same at the bottom. I saw Mrs. Kent. I signed my name three times. Mrs. Kent signed it three times.
“Q. Did you remain in there?
“A. I did. -
“Q. And talked with Mrs. Magnus?
“A. Yes.
“Q. And do you recollect what you talked about?
“A. Well, I did. After Mr. Devereaux went away, he got up and came out into the dining room, sat in the chair, she told me she had got her will made p'ust as she wanted it and she was glad of it. I remained there about an hour.”

The contestants base their claim upon the contention that Mrs. Magnus could not have known the contents of the will because she did not read it, nor was it read to her after Mr. Devereaux finished the writing he was doing when the witnesses saw him. Mr. Devereaux went to the house for the express purpose of drawing the will. He was there before either of the witnesses arrived. How long he had- been there does not appear, nor does it appear as to what occurred between him and Mrs. Magnus before the witnesses came, nor does it appear whether he was writing the body of the will, or what seems- more likely simply the attestation clause, when the witnesses saw him writing. Every lawyer knows it -would be an unusual thing for the scrivener to read over the will in the presence of the attesting witnesses, or to tell them the contents of the will. It does appear from the testimony that enough had occurred between Mr. Devereaux and Mrs. Magnus before the witnesses ccto to demonstrate that she knew what he was doing and was satisfied with it.

We have quoted sufficiently from the testimony to show that when the writing was completed Mrs. Mag-nus was satisfied with it and declared it to be her last will and asked that it be signed and witnessed as such. The testimony shows that the requirements of the-statute, 3 Comp. Laws 1915, § 11821, were met. See In re Kennedy’s Estate, 159 Mich. 548 (28 L. R. A. [N. S.] 417, 18 Ann. Cas. 892).

The judgment is affirmed, with costs to the plaintiff.

Steere, Brooke, Fellows, Stone, Clark, Bird, and Sharpe, JJ., concurred.


text:
    PEOPLE v. UNDERWOOD.
    1. Criminal Law — Excusing Juror — Firemen Exempt from Jury Service.
    A conviction of a violation of the motor vehicle law in a justice’s court,, held, not void because the justice, without the knowledge and consent of defendant, over the telephone, excused a juror drawn and selected and duly summoned to, appear, where it appears that said juror was a member of a fire department and was excused from jury service by the law (3 Comp. Laws 1915, § 12207).
    2. Same — Excusing Juror for Cause.
    A showing to the satisfaction of the justice, in a criminal case, that his business would unduly suffer if he was required to serve on the jury, held, sufficient cause to excuse a juror.
    3. Appeal and Error — Appeals from Justice’s Courts.
    If an appeal from a justice’s court is well taken and prosecuted, it vacates and supersedes the judgment appealed from, and places the case within the jurisdiction of the appellate court, to be proceeded in, almost, if not entirely, in tbe same manner as if it were an original proceeding in tbe appellate court.

      4. Same — Return oe Justice Controiiing.
    An assignment of error attacking tbe return of tbe justice must be overruled; tbe return of tbe justice being controlling.
    Exceptions before judgment from Grand Traverse; Mayne (Frederick W.), J.
    Submitted January 15, 1920.
    (Docket No. 106.)
    Decided February 27, 1920.
    Merritt W. Underwood was convicted of violating the motor vehicle law.
    Affirmed.

      J. J. Tweddle, for appellant.

      Alex. J. Groesbeck, Attorney General, and John O. Duncan, Prosecuting Attorney, for the people.
   Moore, C. J.

The respondent was on the 27th day of May, 1918, complained against before Charles H. Hanslovsky, a justice of the peace, charged with a violation of the motor vehicle law (1 Comp. Laws 1915, § 4797 el seq.), in that respondent did on the 26th day of May, 1918, at the township of East Bay, in said county, drive and operate a motor vehicle, to-wit, an automobile, at a rate of speed faster than 25 miles per hour, and that the said Merritt W. Underwood was then and there driving and operating said automobile at the rate of to-wit, 35 miles per hour, contrary to the form of the statute in such case made and provided, etc. The cause was tried before a jury on the 31st day of May, 1918, who found respondent guilty. A judgment which it is claimed was invalid was pronounced by the justice of the peace. The respondent appealed from the said verdict and judgment in accordance with section 15786, 3 Comp. Laws 1915. He entered into the following recognizance:

“State op Michigan,
County of Grand Traverse
s'
“Be it remembered that on this 8th day of June, A. A. 1918, Merritt W. Underwood, of Traverse City, in said county, Anton W. Bartak, of Traverse City, Michigan, in said county, personally came before me, Charles H. Hanslovsky a justice of the peace of the city of Traverse City, in said county of Grand Traverse, and severally and respectively acknowledged themselves to be indebted to the people of the State of Michigan in the sum of one hundred dollars, to be levied of their goods and chattels, lands and tenements to the use of the said people, if the said Merritt W. Underwood shall make default in the condition following:
“Whereas the said Merritt W. Underwood was on the 31st day of May, A. D. 1918, brought before me, the said justice of the peace, by virtue of a warrant issued by me, upon the complaint in writing and upon oath of Albert Carlisle, East Bay township, taken before and by me, the said justice of the peace, at Traverse City, in the said county of Grand Traverse, on the 27th day of May, A. D. 1918, in which said complaint and .warrant, the said Merritt W. Underwood was charged with having committed the following offense: That heretofore, to-wit on the 26th day of May, A. D. 1918, at the township of East Bay, in the county aforesaid, one Merritt W. Underwood did drive and operate a motor vehicle to-wit, an automobile, at a rate of speed faster than twenty-five miles per hour, and that the said Merritt W. Underwood was then and there driving and operating said automobile at the rate of, to-wit thirty-five miles per hour, contrary to the form of the statute in such case made and provided, of which said offense as above set forth the said Merritt W. Underwood after trial therefor, was duly convicted and found guilty before jury on the 31st day of May, A. D. 1918.
“Whereupon, I, the said justice of the peace, did render judgment and sentence, that the said Merritt W. Underwood should pay a fine of ten dollars and costs of prosecution of $27.10 or serve thirty days in county jail.
“Now therefore, the condition of this recognizance is such, that if the said Merritt W. Underwood shall be and appear personally at the next term of the circuit court to be held in and for the county of Grand Traverse on the 10th day of June, A. D. 1918, at the court house in the city of Traverse City, in said county, and prosecute said appeal at said term to effect, and abide the orders and judgment of. said circuit court, then this recognizance to be void, otherwise to remain in full force and virtue.”

The justice made a return to the circuit court. The respondent deemed this return inadequate and upon his application two additional returns were made by the justice of the peace. The respondent made a motion in the circuit court to quash the proceedings for various reasons. This motion was overruled. ■ The case was tried and the jury returned a verdict of guilty. A motion was made in arrest of judgment which was overruled. The case is here on exceptions before sentence.

The assignments of error are as follows:

“ (1) The court erred in overruling and denying defendant's motion in arrest of judgment.
“(2) The court erred in overruling the objection of defendant to the introduction of any evidence in said cause on the trial in the circuit court, for the reasons that the judgment appealed from is void on its face, being in the alternative and the trial in justice court and the selecting a jury for this cause was not in accordance with the laws of this State, and one of the jurors was excused by the justice without appearing in court after being duly summoned to appear.
“(3) The court erred in denying the motion of defendant to quash the proceedings in said cause for the reasons that Otto Kyselka, a juror selected from the original eighteen and chosen to try the case, was within the jurisdiction of the justice court, duly summoned to appear, and did not appear before the court, the jury finally selected to try said cause was selected illegally and not in accordance with the laws of this State.
“ (4) The court erred in denying the motion of defendant, dated January 15th, 1918, to dismiss and quash the proceedings in said cause and discharge the respondent for the reasons that Otto Kyselka, a juror drawn and selected in said justice court, was excused by said justice over the telephone, without the knowledge or consent of defendant, and that Fred Hunter, a juror, after being summoned, did appear in said court, but was discharged without any legal reason and against the objection of defendant.
“(5) The court erred in denying the motion of defendant dated. February 27th, 1919, to set aside the judgment in said cause and discharge the defendant for the reasons that the judgment appealed from in justice court is in the alternative and the sentence imposed is in the alternative, and the sentence contained no provision that in the event defendant was imprisoned he should be released if the fine imposed was paid within thirty days.
“(6) The court erred in denying the motion of defendant, filed June 14th, 1918, to set aside the judgment in said cause, and quash the proceedings relative to the selection of the said jury in justice court and particularly as to the juror, Otto Kyselka, selected as one of the six to try the said cause, who was within the jurisdiction of the justice court, was duly summoned to appear and did not appear before the court.
“(7) The court erred in denying defendant’s motion for arrest of judgment in said cause, because this record and the several returns of the justice fails to show affirmatively that said circuit court acquired jurisdiction to try said cause and respondent should have been discharged for that reason.
“(8) The court erred in holding that valid judgment was rendered in said justice court and that the jury was legally selected in said court for the reason that the return of said justice, filed June 13th, 1918, recites as follows: The following talesmen were selected and examined in the said cause: John McIntosh, Timothy Temple, William Hogan, Ray Whaley, George Harvey and Ed. Knowles, to which no objection for cause was then and there made or offered by the defendant to the said jurors. That said defendant did then and there object to a trial by the said jurors for the reason that a new list of eighteen jurors was not then and there made from which to select jurors, which objection was overruled by me.”

Assignments 2, 4 and 6 may be considered together. The return of the justice shows that Mr. Kyselka was exempt from jury service because he was a member of the fire department and when he asked over the telephone to be excused for that reason he was so excused. There is no question raised that this man was a member of the fire department and that the law excused him from jury service. 3 Comp. Laws 1915, § 12207.

The return shows that Mr. Hunter was excused because he made it appear to the satisfaction of the justice that his business would unduly suffer if he was required to serve on the jury. ' See Tiffany’s Criminal Law (4th Ed.), p. 202, and cases there cited. These assignments of error are not well taken.

Assignments 3, 5 and 7 may be considered together.

Tiffany’s Criminal Law (4th Ed.), at page 270, reads:

“If an appeal is well taken and prosecuted, it vacates and supersedes the judgment appealed from, and places the case within the jurisdiction of the appellate court, to be proceeded in, almost, if not entirely, in the same manner as if it were an original proceeding in the appellate court.”

These assignments are not well taken.

The 8th assignment must be overruled for the reason that the return of the justice is controlling.

The verdict is affirmed, and the case is remanded for further proceedings.

Steere, Brooke, Fellows, Stone, Clark, Bird, and Sharpe, JJ., concurred.


text:
    VILLAGE OF SHELBY v. STEARNS LIGHTING & POWER CO.
    1. Municipal Corporations — Contracts—Motion to Rescind— Effect of Vote to Reconsider.
    Where a village council adopted a motion rescinding the clause in its contract with a lighting and power company-providing the rate to be charged for light and power, and in place thereof adopted a new clause providing a higher rate, but before any action by the company accepting said new rate the council again met and reconsidered its action, the effect was to abrogate the vote by which the rate was changed.
    2. Same — Contracts—Acceptance after Vote to Reconsider.
    The action of the company in filing the new rate with the railroad commission after the council had reconsidered the vote by which the rate was increased, Tietd, not to amount to an acceptance.
    3. Same — Pleading—Fraud—Relief.
    On a bill by the village to enforce the original contract rate, where the bill alleged fraud and also alleged that the rate charged was in excess of the legal rate provided in the contract, with a prayer for injunctive as well as general relief, the court had power to grant injunctive relief, although he did not find any fraud.
    Appeal from Oceana; Vanderwerp (John), J.
    Submitted January 7, 1920.
    (Docket No. 24.)
    Decided February 27, 1920.
    Bill by the village of Shelby against the Steams Lighting & Power Company for the specific performance of a contract. From a decree for plaintiff, defendant' appeals.
    Affirmed.

      A. S. Hinds, for plaintiff,

      K. B. Matthews (A. A. Reiser and H. L. Campbell, of counsel), for defendant.
   Moore, C. J.

This is an appeal in a chancery case where a decree was entered in favor of the plaintiffs. The issues involved are stated in an opinion of the trial court from which we quote:

“This was a bill filed by the village of Shelby, a municipal corporation, against the Stearns Lighting & Power Company, and it appears that there was a contract entered into between these parties on February 19th, 1917, by which the Stearns Lighting & Power Company agrees to do certain things, among them to light the streets of the village of Shelby and to provide electricity for lighting in other ways, and also provides, in the 4th clause of the contract that the company will make a rate for power purposes of not to exceed two and one-half cents per horse power hour, with a minimum charge of fifty cents per month per horse power installed. This contract was to run for a period of ten years from and after its date.
“The defendant operated Under the contract and furnished light and power according to the contract. On October 21st, 1918, a Mr. Bergen, who claimed to represent the defendant, appeared before the council of the village and asked that the council strike out of the contract clause No. 4. * * * No action was taken at that meeting, and on October 25th, 1918, the council again met, and Mr. Bergen was present, as well as Mr. Chase, representing the Stearns company. Action was taken at that meeting, as the records show, as follows:
“ ‘After due consideration motion was made by Moore, seconded by Johnson, that the 4th section of our present contract with the Stearns Lighting & Power Company be stricken out and the new section submitted by the company be accepted and adopted, which is as follows, the same to take effect December 1st, 1918.’
and then follows the proposition, so-called, and the motion was_ carried.
“Now it is claimed by the bill that there were certain misrepresentations made by Mr. Bergen at one or both of these meetings, and that that was the reason the action was taken making the change in the contract.
“On October 31st, the council again met and the council tnen took action as follows:
“ ‘After a report was read from the clerk, showing the cost to the Shelby Milling Company for nine months upon the basis of the rates allowed under the previous contract and under the rates the council had adopted, which showed a cost of about $200 under the new than under the old; also that the company had claimed they had furnished the basket factories power at the rate of one and one-half cents and their receipts showed that they had paid two and a half cents with two exceptions and these were two cents, Moore made a motion that the council reconsider the action taken Friday evening, October 25th. The motion was seconded by Heald and carried, all the council voting yes. , Motion made by Johnson, seconded by Moore, that the council reject the proposed power rates of the Stearns Lighting & Power Company submitted by their representative, Mr. Bergen, on Monday evening, October 25th. Motion carried.’
“It is claimed by the defendant company that the action taken on October 25th made a final contract, changing the original contract, while it is claimed by the village, the plaintiff here, that the council had the right to make the change, and then that the council had the right at the following meeting, there being no unreasonable delay, to reconsider the action taken and to decline to make the change, and the village claims that this was particularly true because of the fact that there were misrepresentations made with reference to the original proposition and what the result would be if the new clause was adopted. * * * I am of the opinion that the village council could reconsider the action taken by it at the previous meeting, for these reasons: In the first place, village councils have the right to reconsider action taken at previous meetings ordinarily, where no rights, have intervened; also, in the second place, there was no acceptance of the proposition, or rather, of the action taken by the council between the time when the action of October 25th was taken and the time of reconsideration, and also there was no consideration moving to the village as a consideration for the change. Of course, that wouldn’t be necessary if there had actually been a writing filed accepting the proposition; that would have made a contract without any consideration.
“Of course, I realize the claim of the other side is that by filing the rate with the railroad commission that that was an acceptance, but the testimony clearly shows by the admissions in the pleadings and by the testimony, that the filing of the rate with, the railroad commission was done after the action taken on October 31st, because it appears that copies of all three of the meetings were sent to the Stearns people, and that they selected or took only two and filed them with the Lansing commission and retained or did away or something with the other, so that it is clear that they didn’t file or even attempt to file — couldn’t have filed the action of the council with the railroad commission before the action had really been reconsidered by the council. * * *
“Now it is claimed by the defendant that the records did bind the defendant. I don’t believe that that is the law. * * *
“While there may be somethingto the claims of misrepresentations that were made, I don’t think that as far as that is concerned that the situation is in very satisfactory shape, but I don’t think it is necessary for me to determine that question in order to dispose of the case, in the view that I take of the other part, and therefore I think the prayer of the bill should be granted, that is, that the injunction should issue, that the schedule adopted by the council on October 25th and rejected on October 31st, if that action is needed by this court, may be declared to be null and void. In fact it is my holding that it is null and void, by the action taken on the later date, and that, therefore, the original contract is in force, and that the company may be enjoined from raising its rates over and above the original contract price, and of course costs should follow the decree in favor of the plaintiff.”

A decree was entered in accordance with the opinion.

Counsel for the appellant have assigned a large number of errors as in a law case, and have argued them at length. We do not know why this procedure is taken. We deem it, however, our duty to try this as all other chancery cases are tried, de novo, upon the record as presented here.

Counsel say the case stated in the bill of complaint is founded upon fraud, and that the case must stand or fall upon that proposition; that there was no fraud in fact, that the trial judge did not find any fraud, and the bill does not present any other theory and upon this record should have been dismissed. The bill does aver fraud and also avers what was done and what was not done in great detail. It avers:

“And plaintiff expressly charges that all charges made in excess of the rate mentioned in said paragraph 4 are illegal and void.”

It not only prays for injunctive relief but it has a prayer for general relief. We think the averments of the bill of complaint are such as to allow the chancellor to grant such relief as he thinks the facts-warrant.

Another phase of the case is presented by counsel in the brief as follows:

“Defendant having made a proposal and plaintiff having by action of its council duly and regularly accepted the same, a contract existed and no further action on the part of either was necessary. Rescission of that contract was not possible without the assent of defendant, and under the cases' above cited, the attempt of the council to rescind was of no effect. It may be reasonably taken as established that such proposal was in writing, as it actually was. The same record discloses the unanimous vote of the council In accepting and adopting the proposal. Such a proffer, with the acceptance constituted unquestionably ,% contract, and a further acceptance on the part of the proposer is unnecessary.
“The facts herein set forth bring the case , within the Michigan rule as set out in Central Bitulithic Paving Co. v. Village of Highland Park. In this case the village had prepared specifications for certain paving upon which plaintiff submitted a bid. The bid was accepted by the village council and the -attorney instructed to prepare a contract accordingly. This action occurred on August 30th. A contract was prepared but was not satisfactory. The contract was amended but still not signed and on September 11th, the president of the village indicated that unless the council took certain action he would refuse to sign. Whereupon the council attempted to rescind its action. The court held:
“ ‘It is the general rule that where the spefciñcation of a public improvement fully describes the work to he done and a hid is made to do such work and is accepted and entered of record, sufficient evidence of a contract exists to satisfy the statute of frauds.’ Central Bitulithic Paving Co. v. Village of Highland, Park, 164 Mich. 223 (Ann. Cas. 1912B, 719).”

There are two answers to this contention: The' first is that it does not appear either in the bill of complaint or in the answer or in the record itself that any written proposal signed on behalf of the defendant was ever submitted to be accepted by the council, on October 25th. The other reason is found in the case cited by counsel when correctly read. Counsel has doubtless inadvertently omitted some important words in his quotation from the case. It reads “and a bid in writing is made to do such work.” In the instant case the record does not show a written proposal which was accepted by the council, nor does it show, after the council had acted on October 25th, a written acceptance by the defendant company until action was taken looking to a reconsideration.

We again quote from the brief of counsel:

“There can be no possible doubt but that all the pleadings and evidence in the case show a modification and rescission of paragraph four. And the agreement to so modify and rescind because of defendant’s refusal to perform because of financial loss comes clearly within the Michigan rule as to consideration for such agreements. Plaintiff knew its rights and had its remedy Upon defendant’s refusal to perform paragraph four it could rescind the entire contract and oust defendant from the village. Instead it chose to enter into a new arrangement. It would be difficult to find a more parallel case to the Michigan authorities which hold that in such circumstances the new agreement is. based upon a sufficient consideration which rule is expressed and affirmed in Moore v. Locomotive Works, 14 Mich. 266; Goebel v. Linn, 47 Mich. 489 (41 Am. Rep. 723) ; Blodgett v. Foster, 120 Mich. 392; Scanlon v. Northwood, 147 Mich. 139; Pulpwood Co. v. Perry, 158 Mich. 272. Having made such a modification, that act destroyed the old paragraph four completely and it could not be revived except by mutual assent of both parties which is-lacking herein.”

This contention overlooks the effect of the action taken by the village council on October 31st. Cushing on Law and Practice of Legislative Assemblies, § 1265, in speaking of the effect of a motion to reconsider, says:

“If this motion prevails the effect of the vote in question is abrogated • and the matter stands before the assembly in precisely the same state and condition and upon the same question as if the vote which has been ordered to be reconsidered had never been passed.”

Upon this record the decree of the lower court is affirmed, with costs to the plaintiff.

Steere, Brooke, Fellows, Stone, Clark, Bird, and Sharpe, JJ., concurred.


author: Per Curiam.

text:
    ELLSWORTH v. INGHAM CIRCUIT JUDGE.
    Mandamus — Insurance—Surcharge — Injunction — Restraining Insurance Commissioner.
    Where the circuit judge, as a condition of an order restraining the commissioner of insurance from enforcing an order requiring insurance companies to desist from collecting a surcharge of 10 per cent, on policies of insurance, required ^ that the money so collected as surcharges be paid into the State treasury to await final disposition of the case, and during the pendency of these proceedings the collection of said surcharge has been discontinued, the extraordinary writ of mandamus will not issue to compel the circuit judge to vacate said order.
    Mandamus by Frank H. Ellsworth, commissioner of insurance, to compel Charles B. Collingwood, circuit judge of Ingham county, to vacate an order denying a motion to dismiss a temporary injunction.
    Submitted November 19, 1919;
    reargued January 20, 1920.
    (Calendar No. 28,888.)
    Writ denied February 27, 1920.

      Alex. J. GroesbecJc, Attorney General, and Sheridan F. Master and Clare Retan, Assistants Attorney General, for plaintiff.

      Cummins & Nichols, Thomas Bates and Seymour Fdgerton,- for defendant.
   Per Curiam.

Some 154 insurance companies filed a bill in the circuit court for the county of Ingham, in chancery, to vacate an order made by the commissioner of insurance <3f the State requiring them to desist from collecting a surcharge of 10 per cent, on policies of insurance, and for an injunction to restrain the commissioner from enforcing the order. The respondent circuit judge in the ord'er here sought jfco be vacated continued a restraining order against the commissioner on condition that the companies pay into the State treasury all such sums as they collected by way of surcharge, to be there held by the treasurer until the final disposition of the case. During the pendency of this application the companies have ceased collecting such surcharge and the money which was collected is now in the hands of the State treasurer awaiting the final disposition of the case. Under these circumstances, we do not feel called upon to issue the extraordinary writ of mandamus requiring the respondent to set aside such order. The interesting questions presented will be disposed of by us when we have a record before us properly raising them with briefs fully discussing all the questions involved.

The writ will be refused, but without costs.


text:
    ALLEN v. ALLEN
    Courts — Probate Courts — Jurisdiction—Estates oe Decedents. The probate court, having assumed jurisdiction of the estate of a deceased person, has exclusive jurisdiction until the probating of said estate has been completed.
    ' Appeal from Kalamazoo; Weimer (George V.), J.
    Submitted January 22, 1920.
    (Docket No. 13.)
    Decided February 27, 1920.
    Bill by Duane W. Allen and another against Glenn S. Allen and others for an accounting. From a decree dismissing the bill, plaintiffs appeal.
    Affirmed.

      T. E. Ba/rhworbh, for plaintiffs.

      E. M. Irish, for defendants.-
   Moore, C. J.

The case under consideration arises under the will of Oscar M. Allen, Senior, who died July 26, 1910, at Kalamazoo. We take the following statement from the brief of counsel for the appellants :

“The bill of - complaint avers the appointment of a special administrator August 1, 1910, who acted until September 16, 1910, at which time the executors duly qualified and entered upon the general administration of the estate. It further avers that prior to the death of the testator the persons so named as execu-tors and trustees had been from January 15, 1910, to the death of the testator and until the appointment of the special administrator August 1, 1910, managing and controlling the affairs of the testator under a power of attorney, and that such control, except as to the temporary special administration period, had been continuous in Glenn S. Allen and Emmet L. Hollingsworth from January 15, 1910, to the date of the filing of the bill of complaint, and that they still have absolute possession, control and management of all of the_ property of decedent, except as otherwise set forth in the bill of complaint and hereinafter stated. It avers the filing of an inventory, showing the appraised value of the estate at the sum of $700,630.46, of which $133,750.00 was real estate, and $566,880.46 was personaltyand further that the commissioners reported an indebtedness of approximately $285,000.00. It further avers the election of the widow to renounce the provisions of the will, and her right thereby to her dower interest and to her distributive share in the personalty of the estate, and the allowance and receipt by her of the ordinary statutory allowances as such widow. It describes the real estate owned by the testator. * * * It avers that no final settlement has ever been made in the probate court, nor any appointment of trustees under the will been actually made, but that all the powers of trustees have been used by the executors who have acted throughout as owners or holders of the property, real and personal, in trust. It further avers an accounting on October 28, 1912, upon the annual report of the executors theretofore filed, the disallowance of certain items on appeal to the circuit court which still stand of record therein, but that the matters of difference were adjusted out of court so far as plaintiffs are concerned, but may be still pending as to other interested parties. The bill further avers that in such accounting the court refused to consider the period prior to the death of testator under which the entire management of property had been with the defendants Glenn S. Allen and Emmet L. Hollingsworth, ruling that the same was without his jurisdiction; that later on, to-wit, July 31, 1916, an audit of the books and accounts was had and a report filed by Hulsapple & Parks, certified accountants, profert of which is made in the bill. The bill further avers that such report criticizes the methods of bookkeeping and accounting by the trustees as well as careless management and treatment of the funds; that proper vouchers were not obtainable by the auditors, that large sums of money had been withheld frorn deposit while interest charges were accumulating against debts or had beén passed to the private advantage of said trustees and executors whereby the estate had lost, and that various items of disbursement appearing upon the books of said trustees and executors are subject to grave question as to prudence, providence and good faith. That large advances had been made to the defendant Hannah Allen, the widow of the testator, without stipulated interest rates and which would draw only five per cent, per annum, although the estate had a large indebtedness bearing six per cent, interest during the whole course of such trust, which had been accruing through the method of management of the estate. That the capital stock of the Bryant Paper Company which was disbursed among the heirs of the estate was never properly equalized or adjusted as per the agreement with respect thereto made by the heirs, and other dispositions of said stock upon said books and accounts, and that the trustees, although requested to adjust the matter, have not done so; and it charges that such lax and careless methods were intended to be and were in effect made a cover for improper diversion of the funds to the personal advantage of said trustees and the defendant, Dee Allen, one of the beneficiaries under the will. And that in exercising an option as the holders of stock of said Bryant Paper Company, said executors and trustees had subscribed for 250 shares of said capital stock, of ’which 166 shares were charged to the account of Hannah Allen, although she had no funds to her credit as beneficiary of said estate, and no right to obtain further money? therefrom, being very largely overdrawn on any funds properly coming to her from said estate, large sums of money having been paid from time to time to her and for her benefit and advantage greatly in excess of any proper share of said Hannah Allen in the property of the estate whereby funds of the estate have been and are being diverted from the proper beneficiaries thereof, which plaintiffs fear can never be recovered or restored to the estate, and an injunction was sought by said bill to restrain further diversion thereof. The bill further sets forth that the said Hannah Allen has been for many years quite enfeebled, is eighty-seven years of age, and is under the immediate control of the defendants Glenn S. Allen and Dee Allen, and is unable to give proper care to her business, affairs, and that her property is being diverted and disposed of to the said defendants, the trustees named aforesaid, and Dee Allen, induced by improper persuasion and influence, with the fraudulent design and purpose on their part of depriving plaintiffs and other beneficiaries of the same, and allowing the same to foe received, absorbed and appropriated by them through the bounty of the said Hannah Allen, they preventing access to the said Hannah Allen by plaintiffs, and other interested beneficiaries, and averring on information and belief that the said Hannah Allen is not financially able to repay to said estate the amount of such advances and. that said estate will eventually lose thereby.
“An open account of $44,667.48 of funds advanced to the said Hannah Allen was shown by said audit with accrued interest thereon, amounting to $8,435.82 beside promissory notes aggregating $7,450.00 with accrued interest amounting to $1,728.00 which together with some dividends, shows the said Hannah Allen has received from said estate the snm of $59,214.47, increased by a supplemental audit covering the period between April 1, 1916, and July 1, 1917, of $3,257.92, although during the same supplemental period nothing has been advanced by said executors, or either of them, to said plaintiffs, or either of them. These advances to said Hannah Allen aggregate 35 85/100 per cent, of all advances or payments made to the heirs and beneficiaries of said estate; that the indebtedness of said estate under the management of said executors and trustees actually increased during a series of years, although the income of the estate from rentals and dividends approximate the sum of $30,000 per year. During the administration, apart from the shares of the Bryant Paper Company received by plaintiffs on an agreed division thereof among the beneficiaries, said plaintiffs have received respectively the said Ralph M. Allen the sum of $1,325, and the said Duane W. Allen the sum of $1,520.
• “Various particulars are averred in said 'bill of complaint showing improper diversion of assets, improvident management and fraudulent purpose, these averments not necessarily repeating here, but found on pages 13, 14 and 15.
“The division of the Bryant Paper Company' stock by agreement between the parties is also averred, the sale of certain items of real estate, the fact that the auditors in their report to the court included the period prior to the death of the testator during which the affairs of decedent were being administered by said defendants, Glenn S. Allen and Emmet L. Hollingsworth, under the power of attorney before mentioned, and further covers sundry advances and gifts made by the testator in his lifetime to plaintiffs and each of them, as well as like advances to other beneficiaries of said estate made defendants herein.
“The plaintiffs are the only children of Jollie Allen, the son of decedent, who deceased prior to the death of testator.
“The bill further shows that all the debts originally proven against said estate have been paid, but that new indebtedness had been created by the trustees amounting, as shown by the audit, to the sum of $375,000 or thereabouts. That no part of the necessary administration proceedings for the proper execution of said will, apart from the trusts thereby imposed, voluntarily assumed by the trustees, remains to be taken, and .that there is no necessary action by the probate court preliminary to the adjustment of the accounts of the trustees,' unless the same arises from the undetermined áppeal from the original order of said probate court; and that no party other than the parties to this action-are in any manner interested in the funds, of the estate, or in any question involved in this-suit and1 that said appeal was duly adjusted on some terms with each of the parties to such action, and is not' a subject of difference between the plaintiffs and defendants, and that for full, complete and ample relief recourse to a, court of equity is necessary.
“Plaintiffs therefore pray that the said Glenn S. Allen and Emmet L. Hollingsworth be required to account of their doings under the power of attorney hereinbefore mentioned, covering the period from January 1/1910 to August 1, 1910, of the money and property of said estate, and that the said Glenn S. Allen account for his control as special administrator from August 1, 1910 to September. 16, 1910, and that said defendants Glenn S. .Allen and Emmet L. Hollingsworth account for the subsequent period up to the present and until the final order and decree of the courts.” And for further relief.

The defendants Glenn S. Allen, Emmet L. Hollingsworth and Fannie M. Hollingsworth moved to dismiss the bill of complaint and the court below granted the motion because he thought that as the probating of the estate had not been completed in the probate court, the chancery court ought not to take jurisdiction. The case is brought here by appeal. We again quote from the brief of counsel:

• “The next reason assigned by the,court, and which is really the ground of his decision is based upon the proposition that no good reason appeared to the court for holding that any or all relief sought by plaintiffs cannot be had in the probate court. I concede that if this statement is true as a matter of law, the decision of the court is correct, but I submit that abundant reasons are found in the bill which not only justify, but actually necessitate the action of the circuit court to give the relief prayed by the bill. The rule is properly stated by the court that it is settled in this State that the probate court has exclusive jurisdiction of all matters relative to settlement of estates of deceased persons, except in cases where its remedies are inadequate in the present case.
"I further concede, as a general proposition, that the citation, Brown v. Forsche, 43 Mich. 492, in the opinion of the court, affirms the general principles always applied that equitable considerations govern de-' crees of the probate court in its control of the trust relations of executors and testators. But I say further that these relations are not involved in the present status of the case made by the bill, and that even though they were, still if the remedies failed to correct, the wrongs are not such as are within the control of the probate court. The statute, 3 Comp. Laws, 1915, § 13764, conferring jurisdiction upon the probate court as well as the statute of 1899 conferring power on the probate court over testamentary trustees, contains a provision preserving to a court of chancery its concurrent jurisdiction over the same matter. The language in the former statute being as follows:
‘Provided, however, That the jurisdiction conferred by. this section shall not be construed to deprive the circuit court in chancery in a proper county of concurrent jurisdiction as originally exercised over the same matter:’

—while the language of the latter statute, 3 Comp. Laws, 1915, § 14094, is still more definite:

“‘The provisions of this chapter shall not be construed to in any manner limit, charge [change], modify or abolish the jurisdiction as it now exists, of the .courts in chancery of this State, of, over or concerning such trustees and trust estates, but the same shall remain and continue in all respects as though this chapter had not been passed.’
* * * "Passing for the moment but not abandoning the question of the trust period under the power of attorney, we have the following elements, important in their legal consequences, showing the conduct of the trustees to have been contrary to, rather than in accordance with the provisions of the will.
“Section 8 of the bill of complaint avers no dower has been assigned to the widow, nor proceedings taken, but the widow has occupied the homestead continuously from the death of the testator until the present time, that no accounting for that occupancy has been made by the trustees, who however have charged the beneficiaries with all of the expenses incident thereto.
“Section 11 shows, by the report of the auditors appointed by the probate court, misconduct and negligence on the part of the trustees. In connection with this report plaintiffs directly charge fraud primarily in the dealings with the widow, Hannah Allen, and secondarily, through stock of the Bryant Paper Company. The method by which these frauds have been made effective is directly averred in paragraph 13 of the bill of complaint, in connection with paragraphs 11 and 12. The extent of this fraudulent diversion amounts to the large sum of $62,472.39.
“So far as the interests of Hannah Allen are involved in the present case apart from her distributive share of the estate the probate court has no direct jurisdiction under its general administrative powers, as the only right of the widow remaining pertains to her dower interest. In King v. Merritt, 67 Mich. at page 209 of the opinion is found the following:
“ ‘The jurisdiction of the probate court in the matter of dower is purely statutory. It is in no way essential to the settlement of the estate. * * * It is a proceeding, when the estate is solvent, in which the widow and her heirs are interested. * * * And proceedings to assign dower may be had at any time before, during, or after the administration is closed.’
“As to her distributive share of the estate 35 85/100 per cent, of the entire advances of the heirs and beneficiaries. of the estate have been paid to her without any effort being made to ascertain and determine her proper share of the personal assets as a distributee. In addition to which sum, she received her share of the large portion of the corpus of the estate, division of which was made by an agreement between the beneficiaries of the estate in 1914 and 1915, while the plaintiffs in the instant case have received but $2,850, the bill averring that the amounts received by her are greatly in excess of her proper distributive share and except as affected by the unequal distribution of the stock of the Bryant Paper Company as averred in paragraph 15 of the bill, she would have no further interest in the estate. And as to the rights and obligations under that agreement, I submit that no power exists in the probate court to take cognizance of it or litigate in any way with respect'to it. The probate court, whatever its power, is not strictly speaking, a court of law, but a court of limited statutory jurisdiction, established primarily to administer the estates of deceased persons and care for the persons and property of those under disability and liable to wardship. Rodgers v. Huntley, 166 Mich. page 132. * * *
“The authorities bearing upon the difference in jurisdiction between the probate court and the circuit court, in chancery, on questions arising from wills or the administration of intestate estates are at first sight somewhat conflicting, but an analysis of the facts of the respective cases usually clears away the difficulties and shows the distinctions upon which the decision of the particular case rests. An analysis of these cases will, I believe show that the case at bar is not only a permissible case for equity jurisdiction, but that it is the only court in which complete justice can be done. Gibney v. Allen, 156 Mich. 301.” Counsel citing other cases.

In Gibney v. Allen, supra, the executor had rendered his final account, which was allowed, and he had been credited with the amount as executor, which was to be charged to him as trustee, and was then discharged as executor.

In the instant case there had been no final accounting in the probate court and a turning over the funds to the trustee. The other cases cited have been examined and are hot inconsistent with the order made in the lower court.

The questions involved are not new in this' State. They are discussed quite in detail in Brooks v. Hargrave, 179 Mich. 136. Commencing at page 144, the court considers the question of when a court of chancery will take jurisdiction when the probate court is already in the exercise of jurisdiction. In the discussion that follows there is a citation of a large number of authorities. See, also, the recent case of Tipson v. Jeannot, 204 Mich. 403. These cases are so accessible that it is unnecessary to do further than refer to them. We think they are controlling of the instant case.

The decree is affirmed, with costs to the defendants.

Steere, Brooke, Fellows, Stone, Clark, Bird, and Sharpe, JJ.. concurred.