text:
    TATTAN v. BRYANT.
    1. Vendor and Purchaser — Options — Land Contracts — Construction of Contract.
    A memorándum of agreement relating to the sale of land which contains no obligation to purchase and makes reference to a “prior option,” with the terms of which both parties are familiar, and provides that a deed will be given on compliance with the “terms of this option,” and that on failure to make the stipulated payments the instrument will be canceled, constitutes a mere option and not an agreement for the sale and purchase of land, even though the parties are designated as seller and purchaser and other language more properly belonging in an agreement for sale and purchase is used, since the absence of an obligation to purchase is the distinctive characteristic of an option contract.
    2. Specific Performance — Land Contracts — Extension, of Time —CANCEIiATION—N OTICE.
    Specific performance of a land contract, in which time of payment is made the essence of the contract, will not be granted in favor of the contract purchaser where, although the time of payment is extended a few days in order to allow the purchaser to have certain restrictions as. to the use of the property removed, and, on the day to which: time of payment was extended, she called at the vendor’s office several times and was ready to make the payment due, she made no tender to, and left no notice with, those in charge of the office, and had not obtained the removal of the restrictions, and did not intend to, and shortly thereafter received notice of termination of the agreement from the vendor and took no steps in the matter until about five months later when she filed her bill, having in the meantime learned that a purchaser was about to relieve the property of its restrictions.
    3. Same — Right of Action — Discretion of Court.
    Specific performance of a land contract will not be granted as a matter of right, but in the discretion of the court.
    4. Same — Evidence—Sufficiency.
    Evidence held, insufficient to sustain the burden of proof upon plaintiff, the purchaser, in an action for specific performance of an agreement for sale of land.
    Appeal from Wayne; Perkins, J., presiding.
    Submitted April 16, 1917.
    (Docket No. 59.)
    Decided December 27, 1917.
    Bill by Catherine Tattan against John A. Bryant for the specific performance of an alleged land contract. From a decree dismissing the bill, plaintiff appeals.
    Affirmed.

      John C. Shields (N. C. Bigelow and Arthur E. Fixel, of counsel), for plaintiff.

      Clark, Emmons, Bryant & Klein, for defendant.
   Steere, J.

This litigation arises out of the following instrument in writing, which plaintiff contends is a land contract, and seeks to enforce specific performance of, while defendant insists it is but a forfeited option, and,_ even if construed as a contract, defaulted and no.t enforceable:

“Memorandum of agreement, made and entered into' this 13th day of April, A. D. 1914, by and between John A. Bryant, of the city of Detroit, Wayne county, Michigan, hereinafter known as the seller, and Catherine Tattan, of the same place, hereinafter known as the purchaser: In consideration of the sum of one dollar this day paid to the seller by the purchaser herein named, said seller does hereby agree to sell to said purchaser the following described property, to wit: The Woodward avenue frontage, being the westerly one hundred feet (100) of lots B and two and the north one-half of the vacated portion of Pallister avenue of Chandler avenue subdivision of part lot five (5) of subdivision of quarter section 57, ten-thousand-acre tract, excepting and reserving an easement or right of way on a strip of land ten (10) feet in width from the easterly end of said property, as provided in a certain deed to John Kaiser, Sr.; also including easement and right of way over southerly ten (10) feet of land heretofore deeded to said Kaiser, Sr., on the following terms, to wit: For the sum of twenty-
four thousand two hundred dollars ($24,200) payable five hundred dollars ($500) on the signing of this agreement and the balance of twenty-three thousand seven hundred dollars ($28,700) as follows: Twelve thousand, two hundred dollars ($12,200) or more payable thirty days (30) from the date hereof and the balance of eleven thousand five hundred dollars ($11,-500) as follows: Three thousand dollars ($3,000)
one year from date; three thousand dollars ($3,000) two years from date and the balance of five thousand five hundred dollars ($5,500) three years from the date hereof, with the privilege of paying any and all sums at any time after this date, with interest at 6 per cent, per annum on any sums due and unpaid.
“It is understood and agreed between the parties that E. M. O’Roark, real estate agent, who held a prior option on this property, dated March 10th, 1914, which said option has expired, is to receive from the first payment of twelve thousand two hundred dollars ($12,200) the sum of seventeen hundred dollars ($1,-700), which amount is to be in full of all claim on his part for commission or otherwise, against either of the parties hereto, or against said property; and said E. M. O’Roark has this day signed this agreement as evidence thereof. It is provided further that if said purchaser shall fail to pay the sum of twelve thousand two hundred dollars ($12,200) thirty days from the date hereof, as agreed, then said payment of five hundred dollars this day made shall be retained by the seller as liquidated damages and this agreement shall at once be canceled and the purchaser shall forfeit any interest she may have or may claim in said premises.
“It is understood and agreed that the purchaser has examined Burton abstract, that the title is satisfactory and that upon the completion of the terms of this option and payment of the purchase price for said property, she shall receive a deed warranting said title against the acts of the seller and a Burton abstract as now brought down and certified.
“In witness whereof, the parties have hereunto set their hands and seals the day and year first above written.
“John A. Bryant.
“Catherine Tattan.
“E. M. O’Roark.”

The only other writing of any significance connected with this instrument and what was done in relation to it is as follows:

“May 15, 1914.
“Mrs. Catherine Tattan,
“51 Massachusetts Street,
“Detroit.
“Dear Madam: I am writing to advise you that in view of the fact that you have defaulted in the terms of the agreement dated April 13, 1914, covering purchase by you of property owned by me at the corner of Woodward avenue and Chandler, I am exercising my rights under the terms of that agreement in declaring forfeited to me the $500 paid thereon on April 13, 1914, and I will now proceed to dispose of said property without being limited by the April 13th agreement.
“You came to this office on May 13th, on which date a payment of $12,200 was due, and stated that you were unable to make the payment and asked for' a ten days’ extension of time. This I was unable to give you and so stated to you. Inasmuch as you admit that you are unable to carry out the terms of the agreement, the deal is therefore declared off.
“Yours very truly,
“John A. Bryant.”

The $500 payable “on the signing of this agreement” was-then paid as provided. Plaintiff never paid or tendered the $12,200 made payable 30 days later. She called upon defendant at his office on May 13th and asked for an extension of time to make this payment, which she claims and he denies was orally granted,'until the following Monday. Plaintiff testified that she was accompanied by her attorney, whom she took with, her, thinking perhaps an extension of time would be granted, and if any writing was to be done, etc., he would be there to look after her interests. With at first some misgivings as to the date, her attorney concluded that the interview with defendant in which he participated was on May 13th, and testified in part:

“As to the extension he absolutely refused to give it, but he said he would not do anything for a certain length of time. * * * I had an impression that •the matter would stand as it was until over Monday.”

Defendant fixes this interview on the following day (May 14th) and the second visit of plaintiff when she returned with her counsel to further press the matter, at which time, though answering to their persistent inquiries that he was not going to sell the property before Monday and they could see him any time they wished, he asserts that he positively refused to extend the stipulated timé, which is supported by the testimony of his woman office assistant, and the interview finally ended by the attorney becoming irritated, and as he left intimating a purpose to “fix” defendant, which intimation was the occasion of sending the letter of May 15th to make clear in writing his position.

Defendant was a member of the contracting firm of Bryant, Detwiler & Co., and testified that his sole business was that of contracting, although he had invested money in real estate and owned the property in question for 4 or 5 years; it being his first purchase after his home. It was burdened with building restrictions which, under changed conditions and the invasion of business in that locality, tended to impair its market value. Plaintiff had been in the real estate business in Detroit for 15 years, handling many real estate transactions both as agent and for herself, and, as she. testified, was familiar with the complications arising in that part of the city over such restrictions; knew the land which she had dealt for at the price of restricted property would be much more valuable with the restrictions removed; expected to effect their removal within the 30 days before her second payment fell due, and intended to make her profit on the deal through being able to sell it as unrestricted property. One of the embarrassments she met in her campaign of removal was the reservation of a private easement or 10-foot right of way once deeded to John Kaiser, as appears in the description of the property. Of about 200 residents whose written consent was required to relieve the property from restrictions she had only secured some 12 or 14 signatures up to May 13, 1914, but claimed she had assurances that if the city would accept and adopt the 10-foot easement as a public alley she could obtain releases from the rest. She had accordingly been working with the city authorities to get the public alley through, and states she “was getting near to the council” when the date for the $12,200 payment arrived, and had an appointment with the legal representative of the city for the Monday following, which gave promise of favorable results. Her understanding that a purchase of the property by her was optional and her attitude in regard to the proposed public alley she hoped to secure are indicated in the following questions and answers on her cross-examination :

“Q. So you wanted further time to get a public alley there, is that right?
“A. No, it would be satisfactory to the city if they would accept a 10-foot alley.
“Q. Then, of course, you didn’t want the property if they didn’t?
“The Court: If they didn’t what?
“Q. If the city would not accept a 10-foot alley, then what?
“A. Then I presume I was up against it to do anything with the property. * * *
“Q. Unless you could get the city to accept that 10 feet you would have to give up the property?
“A. Yes, that was as far as closing up with Mr. Bryant. I was to see Mr. L. that afternoon at 4 o’clock. I told him if the city would accept the 10 feet for a public alley, then I was going to go ahead with my deal with Mr. Bryant. * * *
“Q. Even if you could not get the alley accepted as a 10-foot alley, you were going to close?
“A. I was going to lose my $500.”

Contending that the instrument in question is a present agreement between the parties for sale and purchase of land, and not a mere unilateral option contract giving a right to elect to purchase on or before some future date, counsel for plaintiff stress certain of its phraseology more properly belonging to, and commonly found in, an ordinary land contract, pointing out that the “memorandum of agreement” is signed by both parties, who are designated throughout as “seller” and “purchaser;” that, first naming a nominal consideration of $1, it specifically provides “said seller does hereby agree to sell to said purchaser the following described property, to wit,” etc., for the stated price of $24,200, payable “five hundred dollars ($500) on the signing of this agreement and the balance as follows,” etc., and that in case of default “said payment this day made shall be retained by the seller as liquidated damages.” It is also urged that defendant so construed the document in his notice that she had “defaulted in the terms of the agreement covering purchase by you of property owned by me,” and also admitted in his answer the allegation in plaintiff’s bill that he offered to sell and convey to her the property in question, and she “agreed to purchase” the same.

On the other hand, we find no provision in the document by which she agrees to purchase; it makes reference to a “prior option,” with the terms of which both parties were familiar, and it provides she shall receive a deed on compliance with the “terms of this option.” Having paid the $500 upon execution and delivery of the instrument, nothing further is imposed upon her by the instrument. She was free to perform and enforce it, or forfeit the payment and abandon it, whereupon, by its own limitations, it “shall at once be canceled.” Absence of an obligation to purchase is the distinctive characteristic of an option contract. James on Option Contracts, § 105.

It is evident that the scrivener of this instrument, while naming it an option, clouded its clarity by adopting in .part phraseology appropriate to an executory land contract, but in that aspect it is deficient for want of mutual executory obligations while it does contain the essentials of an unilateral option contract, giving the right to purchase within a limited time without imposing any obligation to purchase.

But even yielding to plaintiff’s contention that under the conflicting wording of the agreement and defendant’s concessions as to its import the question of specific performance of a land contract is before the court, we are in harmony with the trial court from that viewpoint. Plaintiff was familiar with and experienced in the difficulties attending attempts to enhance values of property in that locality by removing restrictions; she was interested in the “prior option” held by O’Roark, also a real estate agent, with whom she co-operated. During the life of that option she secured a customer who would buy the property on condition that they would remove the restrictions, which they attempted to do, but were unsuccessful, following which she secured this instrument, giving her 30 days longer in which to continue her efforts, paying $500 on it, which she states she was going to lose if she could not get the public alley accepted; for her anticipated profits on the deal were contingent on being able to sell it as unrestricted property. Her statements as to what she did or could do, and when, and her ability to meet the payment on May 13th, or the following Monday if it was insisted upon, áre in many respects confusing and self-contradictory. In apparent explanation of certain manifest inaccuracies, she said:

“The only thing I have to depend on is my memory, and I have so much business that that fails me once in a While. I don’t keep any books or records.”

Whatever else may be claimed for it, time limit was made of the essence of this contract in clear and unequivocal terms, and she well understood it. The most she claims is that the time was extended by parol, without consideration, from May 13th (Wednesday) until the following Monday. She testified that she called at defendant’s office two or three times that day, and did not find him in; that she had part of the money necessary to pay the $12,200 with her, and had made arrangements to borrow the rest from a saloon keeper, and could have procured it by calling him up and notifying him everything was all right. She made no tender to, and left no notice with, those in charge of defendant’s office, had not then secured removal of the restrictions on the property, and stated she did not subsequently make any further effort to do so. If not fully advised before, she shortly thereafter received notice in writing of defendant’s position and took no steps in the matter until November 25, 1914, when she filed this bill, after, as testimony tends to show, she learned that a purchaser of the property was in a fair way to relieve it of the restrictions which impaired its valué.

Accepting plaintiff’s testimony as true, the special features and incidents of this case are not impelling to the enforcement of a discretionary remedy which she is not entitled to as a matter of right; but beyond this, upon the issues of fact which are essential to the application of this discretionary remedy, we cannot disagree with the conclusion of the learned circuit judge that plaintiff has failed to sustain the burden of proof.

The decree is affirmed, with costs to the defendant.

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


source: Caselaw Access Project

author: Steere, J.

license: Public Domain

text:
    PEOPLE v. PAGE.
    1. Criminal Law — Murder—Indictment and Information — Sufficiency.
    An information for murder in the form of the statute, 3 Comp. Laws 1915, § 15739, is sufficient, although it does not state that the murder was committed while a robbery was being perpetrated or attempted.

    2. Same — Murder in First Degree — Statutes.
    Under 3 Comp. Laws 1915, § 15192, the killing of a human being, which shall' be committed in the perpetration, or attempt to perpetrate, any arson, rape, robbery or burglary, constitutes murder in the first degree.
    3. Trial — Alibi—Instructions—Requests to Charge.
    Any error on the part of the trial court in a murder case in failing to give an instruction on the right to find the defendant guilty of manslaughter is untenable, where the case is tried on the theory of the State "of murder while attempting to rob, and the defense is an alibi, and no instruction that defendant might under the information be found guilty of manslaughter is requested.

      4. Same — Admissions—Instructions—Prejudicial Error.
    The admission, in a criminal prosecution for murder, of evidence of former crimes of accused will not be presumed to be prejudicial error where the court grants a motion to strike out such testimony and the jury at once is instructed to disregard it, and the instruction is also stated in the general charge.
    5. Same — Conduct of Counsel — Appeal and Error.
    An objection to the conduct of counsel for the State in attempting to introduce incompetent evidence in a criminal case must be specific in order to constitute a basis for the assignment of error.
    6. Same — Incompetent Testimony — Instructions — Harmless Error.
    The attempt of the State, in a criminal prosecution for murder, to introduce incompetent testimony is harmless error where the court promptly rules that it would not be competent and the jury is cautioned to pay no attention to it.
    Error to the superior court of Grand Rapids; Dun-ham, J.
    Submitted April 12, 1917.
    (Docket No. 157.)
    Decided December 27, 1917.
    Lawrence Page was convicted of murder in the first degree, and sentenced to imprisonment for life in the branch of the State prison at Marquette.
    Affirmed.

      Louis T. Herman, for appellant.

      Cornelius Hoffius, Prosecuting Attorney, and Fred P. Geib, Assistant Prosecuting Attorney, for the people.

       On effect of statutory declaration that murder committed by certain means, or in the commission of felony, shall be murder in the first degree, upon right of jury to pass upon degree, see notes in 12 L. R. A. (N. S.) 935, L. R. A. 1916D, 610.
      On reversal of conviction because of unfair or irrelevant arguments or statements of facts by prosecuting attorney, see •note in 46 L. R. A. 641, specifically as to reference to previous conviction or other crimes, see page 663 of above note.
      Generally on the question of homicide in the commission of felonies, see note in 63 L. R. A. 354.

   Steere, J.

Respondent, Lawrence Page, a young man 22 years of age, was convicted in the superior court of the city of Grand Rapids in Kent county of the murder of his stepgrandfather, Francis M. Sprague, who at the time of his death was living alone at 425 Resell avenue in the westerly outskirts of said city. Respondent was arraigned in the superior court on April 22, 1916, under an information containing three counts charging him in varying language with the murder of Sprague, on January 18, 1916. He stood mute to the information, and a plea of not guilty was entered by the court in his behalf. The case was brought to trial before a jury on June 6, 1916. The theory and claim of the prosecution was that respondent killed Sprague while robbing or attempting to rob him when they were alone together in the latter’s home at or about 4 o’clock in the afternoon of January 18, 1916. Sprague’s death was not discovered until shortly after noon on January 20, 1916, when .his dead body was found in his home in a condition indicating conclusively that he had suffered death by violence a considerable time before the fact was known, and the corpus delicti is not questioned. The prosecution could produce no witnesses to the tragedy, and its evidence against respondent was circumstantial. The defense was an alibi. The trial lasted until' June 16, 1916, when the case was submitted, to the jury and a verdict rendered finding defendant guilty of murder in the first degree, for which he was subsequently sentenced to confinement in the branch State prison at Marquette for life.

Respondent’s numerous assignments of error concentrate, in substance, to the four claims of prejudicial conduct and remarks- of the prosecuting attorney during the introduction of testimony and in summing up the case, a fatal variance between the proof of the prosecution and its information, prejudicial admission by the court of incompetent testimony not cured by subsequently striking it out, and failure of the court to instruct the jury that respondent might be found guilty of a lesser crime than murder in the first degree.

Francis Sprague was 78 years of age at the time of his death. He was the husband of respondent’s grandmother, with whom he had lived for several years in rooms on the second story of the house where he was living alone at the time he met his death; but under an agreement of separation between them, dated November 30, 1915, she had gone elsewhere to reside, leaving him in occupation of the rooms they formerly occupied together. The place belonged to her, and at the time in question her goods were stored-in the lower part of the house, which was otherwise not in use and locked up; access to the rooms upstairs in which he lived being by an outside iron stairway at the rear of the building. Rosell avenue, which runs northerly and southerly in the westerly part of the city, is most directly reached from the central or business section by Bridge street, which runs east and west with a car line extending along it from Monroe avenue to the west, past Lincoln Park, to Valley avenue. Rosell is the next street west beyond Valley avenue, on higher ground and beyond the end of the car line. It is not a graded street and runs north from Bridge under the slope or near the rise of a height called Bridge Street Hill. Turning north upon it from Bridge street there are no buildings on the right or easterly side of Rosell avenue. On the left or westerly side, the first house is the home of an old couple named Weiner, beyond which, with a vacant lot or two between, is the house in which Sprague lived; just north and close adjacent to which is a house occupied by a family named De Grail, directly opposite whose kitchen door and within six or eight feet rests the foot of the outside stairs at the rear of the Sprague house. The hill rises sharply from the street to the west at the rear of the houses, which are on a so-called terrace considerably above the street level with a rise and walk leading to the rear between the two houses. Sprague was accustomed to receive mail in the De Graff mail box, which was on their porch. The upstairs portion of the house which he occupied consisted of two rooms, a front room facing east on Rosell avenue and a back room facing west used for kitchen purposes, connected by a door and small covered landing with the head of the outside stairway. Respondent was familiar with the place and its environments, as well as Sprague’s habits and characteristics, having both visited and lived there at different times. He testified on direct examination that before he went to Ionia prison he had lived up there with his grandmother and Sprague “six months in a stretch.”

Shortly after 12 o’clock on January 20, 1916, one Edward F. Lillie, who had known Sprague for “35 or 40 years,” went to his place of residence, passing to the rear between the Sprague and De Graff houses. It had been snowing, and he noticed there were no tracks. On going up the outside stairs he found a key in the lock of the outside door. He opened the door and saw deceased lying upon the floor apparently dead and in such condition that, without stopping to investigate, he hurried to a drug store at the corner of Valley and Bridge streets, where he telephoned the police department and for a coroner. A police officer named Slater was first on the scene, followed soon by the coroner and others. They found Sprague lying dead on the floor on his back in the rear room next to the entrance from the outside stairway, fully dressed as though he had just been or was going outside, having on his rubbers and a fur-lined overcoat. There was a partition on the south side of this room with a table against it not far from the outer door, upon which were dishes, articles of food, and a hammer with a drop of blood upon it. The body and room were cold. Some water in a pail near the outer door was frozen, and Sprague’s body lay with the head to the southwest towards the table in a frozen pool of blood, with the feet to the northeast within three or four feet of the entrance way between the two rooms across which a curtain hung on a rod. Against the wall close to this curtained doorway stood an iron bar about 20 inches long, two inches wide and an inch thick. On the right of the body close to this doorway was a pool of blood in which was frozen the handle of a potato masher. Near it was a pair of bow spectacles and his broken false teeth. The hands lay at his sides with the palms turned up. His tie was disarranged, collar broken in front, with blood on his shirt, collar, overcoat, and the back of his hands. The lapels of his coat were open with a bank book and other papers of no general value resting upon them, and a Grand Rapids Herald dated January 18th lay partially across the body. There was no money, watch, chain, stick pin, or other jewelry upon the body, except a plain band ring on his finger, and no weapon of any kind. A cap lay on the floor in the front room with blood stains and hair on the inside. A screwdriver lay on the floor between the body and outer door. Various serious cuts and' bruises appeared upon the face and head. The autopsy disclosed a cut about an inch long under the left eye, another about two inches long on the forehead extending back with a clean cut wound to the skull, a jagged, crushing wound on the side of the head above the ear, and a fracture of the temporal bone where the lower jaw fits into it. The coroner testified that the organs were normal and death had resulted from this fracture of the skull producing concussion of the brain.

Officers of the police department immediately began an investigation, and detectives ' were detailed upon the case. The De Graffs and Weiners, who lived next adjacent on each side of the Sprague house, were interviewed at once. An officer went that afternoon to look for respondent and an associate named Vincent Jagge. He visited their homes without finding them, but later, while waiting on the street, saw them come out of a pool room together and arrested them. They were taken to jail and put in separate cells. Each at first made total denial of any knowledge of or participation in the offense under investigation, but a couple of days later Jagge made a statement to the officers of his knowledge in relation to the matter, implicating respondent. As shown by the testimony of each of them, respondent and Jagge had been associates of like tastes and habits, pursuing their pleasures and vices in familiar companionship. Both were young men averse to steady employment, apparently preferring to live upon indulgent parents or relatives and obtain funds by borrowing, pawning their clothing, and other questionable expedients, rather than by working. Near three years prior to this time respondent had forged Sprague’s name to a check, and Jagge had passed it. When arraigned for that offense, they pleaded guilty and were paroled by the court under suspended sentence. Respondent violated his parole and was sentenced to Ionia prison, where he served time until paroled from there in November, 1915, when he returned to his home in Grand Rapids and went to work in a factory where employment had been secured for him, but started again to frequent saloons, before he had seen Jagge or any of his old associates, as he testified, soon left his employment, and renewed his companionship with Jagge and other kindred spirits. He visited Sprague on several occasions and attempted to borrow money of him, states that he played checkers. with him, was there in November to “get money for my tools,” and secured $10. Jagge, who knew of respondent visiting Sprague to borrow money, testified that he reported lack of success on such occasions.

The last time Sprague was shown to have been seen alive by any one was on Tuesday, January 18, 1916, the date of the newspaper found with his body. He was shown to have gone downtown that afternoon and returned about 4 o’clock. Mrs. De Graff and Margaret Exo, who was living with her, saw him come up the steps to their porch that day and get his mail from the box about 4 o’clock p. m. He then had on an overcoat with a fur collar. August Weiner and wife, who lived on the south side of the Sprague residence and had known Sprague for several years, saw him, on the afternoon of the Tuesday before his body was found, as he passed their house going to and returning from the car line wearing a dark overcoat and cap. Weiner testified he was 72 years of age and did not work winters ; that while sitting by his window on that afternoon he saw respondent, whom he had known well by sight since 1905, pass northerly from the street car line towards Sprague’s place without any overcoat on and walking fast; that he was curious to observe where he went, and watched him turn into the passageway between the two houses leading to Sprague’s stair; that witness remained by the window, and about half an hour later saw Sprague go by towards his home. Mrs. Weiner also testified to seeing respondent pass their house. In confirmation of the date, Weiner testified on cross-examination that he first told of this to the officer on the Thursday following, when they found the body and the ambulance was there. Minnie Bed-ford, proprietress of the Charlevoix Hotel on Monroe avenue, knew Sprague, who was often at her place and received mail there, recalled seeing him there the last time between 1 and 2 o’clock on the Tuesday previous to his body being found. Edward Mead, conduct- or of the car on which Sprague rode home that Tuesday, remembered the occasion and his speaking about a pair of glasses he thought he had lost and asked Mead to look for, stating he had himself mislaid and found them. None of these witnesses or any others who testified had seen Sprague after that day until the body was found. Persons well acquainted with Sprague testified that he was in the habit of carrying considerable money on his person. As before stated, respondent knew Sprague well, and Jagge testified he told him of this habit.

It was shown that on Monday evening before the Tuesday in question respondent pawned his overcoat, which was of a dark gray color, to a Mr. Pawlowski for $2, although it was then cold winter weather. Pawlowski testified that he saw respondent the next afternoon (Tuesday) at about 5 o’clock in front of the Pantlind Hotel wearing a brown overcoat and spoke to him but received no response. Respondent redeemed his gray overcoat that day. He testified that he borrowed the money to do so from his mother, whom he met when he was on his way to see his grandmother, from whom he expected to get it. On Wednesday he went to Ionia, as he stated, to see the pardon board about getting permission to go to Detroit for work. He returned to Grand Rapids that night. Of respondent’s visit to Sprague’s house on that Tuesday Jagge testified, in part, that they met at the Columbia Hotel about 11 a. m., where they remained drinking and playing cards until about 2:30, when they left together; that although it was a cold day neither had an overcoat, Jagge having sold his some time before, while respondent had pawned his the previous evening ; that neither had any money to speak of, and respondent said he was going to his grandfather’s to get some, and Jagge asked him how he coufd get it, to which he replied, “Leave it to me, I will get it;” that they walked together west on Bridge street to the vicinity of Lincoln Park, and respondent asked Jagge if he would wait for him, to which Jagge said he would go to his grandmother’s on Garfield street, which was near by, and wait there; that he did so, and got something to eat, after which he went out to look for respondent and, not seeing him, returned to his grandmother’s, where he read for a while and about 4 o’clock went out, saw respondent with a brown overcoat on extending below his knees and his hands in the pockets; that as they met respondent “acted kind of scared,” and with an oath said, “Look there!” showing his left hand with some blood upon it, and, when asked what happened, said that Sprague came home and finding him there addressed him roughly, and in reply to his request to borrow money called him a vile name, looking around for something to strike him with, whereupon respondent “knocked him coldthat after they went down the street a distance he produced a watch, with chain, and diamond, and said he also got a bunch of checks; that they went to Lincoln Park together, where respondent showed some blood on his knee and tried to wash the blood from his hands at the pump in the park, but it was frozen up; that he wanted Jagge to pawn the diamond he had, but the latter told him he vras going home to steal something and left him; that he later met respondent down town wearing the same brown overcoat, and they were together for a time, then respondent went to a pawnshop while Jagge went to a theater and looked at pictures in the lobby, after which they met and respondent said he had tried to pawn the diamond but could ¡ not get enough money on it; that they met by chance the next day, and respondent said his “mother burned everything up, the suit and the overcoat and the underwear, and she had ditched the diamond, and he had found the diamond and taken out the real stone and put in a piece of glass and he had the real diamond with him that day, and he wanted me to find some one to pawn the diamond for him. He said he would give them half the money if I could find somebo'dy for him. I told him I didn’t know of anybody.”

Jagge’s grandmother, Mrs. Garbrecht, testified that on the Tuesday in question he came to her home and remained about three-quarters of an- hour and had something to eat; that he went out once during that time, and when he finally left she watched him from the window and saw him meet a boy whom she identified as respondent, who .had on an overcoat, and she saw him pull his hand out of his pocket, showing it to Jagge, when they walked away together towards Bridge street. A young woman named Della Tischer, who worked in Peck’s drug store and roomed at the Page home, testified that she usually got home before 7, and on the evening of January 18th she could not get into the house as usual; that she knocked, and finally respondent came to the door and asked, “Is that you, Della?” upon receiving an affirmative reply, he opened the door, and she noticed that he was excited; that in the sitting room one window was open as far as it would go, and there was a quick fire in the stove with an odor of burning cloth in the room.

Jagge’s long and grilling cross-examination, as well as portions of his direct examination, showed him, as claimed by the defense, a witness of unsavory character, limited intelligence, and questionable veracity. His memory did not always serve him well as to what he had recently testified to. He was palpably of that type of witnesses the chief value of whose story lies in confirmatory facts and circumstances by credible wit- ¡ nesses to the discovery of which it has led. Though j varying in minor details, his story and that of re-\ spondent touching their personal relations, conduct, and circumstances during the time under inquiry only differ materially as to respondent’s whereabouts on the afternoon of January 18th and what was done or said by him in relation to his connection with or knowledge of Sprague’s death. He made total denial of seeing or being with Jagge that afternoon, and in support of his claimed alibi gave practically unsupported testimony as to his whereabouts between 2 o’clock and 5, although he stated a portion of the afternoon was spent at home fixing his mother’s washing machine and changing the socket of the electric light in Miss Tischer’s room from a snap to a pull switch. She' denied that the light had been changed that day, and no member of his family testified to his being at home during that time. Many witnesses were called and testified to facts and circumstances tending to sustain or refute the theory of the defense, and, without further detail, it is sufficient to state that the record furnishes abundance of testimony which if found true fully supports the verdict rendered.

Defendant’s complaint of prejudicial variance between the information and proofs, because none of the counts charged in direct words that the murder was committed while a robbery was being perpetrated or attempted, is not well founded. One of the counts was the statutory short form and the others of like import, but more elaborate phraseology. There was nothing in them to mislead. They simply failed to fully set out the manner in which the charged murder was claimed to have been committed and means used. It is not necessary in an information, or indictment, in this State

“to set forth the manner in which, or the means by which the death of the deceased was caused; but it shall be sufficient in any indictment (or information) for murder to charge that the defendant did wilfully, and, of his malice aforethought kill and murder the deceased.” 3 Comp. Laws 1915, § 15739.

That was done in this case. Respondent’s arrest on suspicion was followed by a complaint, warrant, and lengthy preliminary examination before the committing magistrate, or police court; while the testimony-then taken is not in the printed record, it was returned to and before the trial court. In his opinion denying a motion for a new trial the presiding judge said:

“That examination must have (informed the respondent of just what the claim of the people was. I have carefully read all the testimony taken in police court, and I cannot find that the evidence here differed from the testimony in police court.”

The ruling is fully sustained by the statute as interpreted in Sneed v. People, 38 Mich. 248, and People v. Bemis, 51 Mich. 422 (16 N. W. 794).

It is urged as error that the court failed to instruct the jury that respondent might under the information against him be convicted of _ manslaughter. This is based on respondent’s testimony, that he was on friendly terms with Sprague, had borrowed money from him, might be found' from the evidence to have gone there again for that purpose, and Jagge’s testimony of what respondent told him occurred on that occasion. By statute (section 15192, 3 Comp. Laws 1915) the killing of a human being

“which shall be committed in the perpetration, or attempt to perpetrate any arson, rape, robbery or burglary, shall be deemed murder in the first degree.”

In Wharton on Homicide (3d Ed.), § 119, it is said:

“In such case the turpitude of the criminal act supplies the place of deliberate and premeditated malice and is its legal equivalent, and the purpose to kill is conclusively presumed from the intention which is of the essence of the criminal act intended, and such a murder is a murder in the first degree under such statutes, though it is casual and unintentional.”

Upon the preliminary examination and trial, the theory and sole claim of the prosecution was that respondent killed Sprague while robbing or trying to rob him. The only defense made or claimed was an alibi, and that Sprague was murdered by some one else later than the prosecution fixed the crime. In his opening statement to the jury counsel for respondent said, in part:

“We will show you that whoever committed that murder went into that home after 6:10, * * * and we will show you that the old man from where he was at 6 o’clock, could not have reached home before 6:30. * * * We will show you that Sprague was murdered by some one else.”

Both parties tried the case upon, these respective theories, and, when the prosecuting attorney in summing up to the jury made reference to some possible claim of self-defense, respondent’s counsel objected and took an exception, saying:

“Because, as I understand this case, it is only a case of murder in the first degree or nothing, there is no manslaughter in this case, and cannot be under the law.”

Counsel for the people said: “That is the claim; it is murder in the first degree or nothing.” And upon that proposition the court instructed the jury in harmony with the claims both parties made.

The position then taken in the trial court by defendant is the opposite of that taken here. The trial court was not requested to charge the jury as is now claimed should have been done, nor was the question presented in respondent’s motion for a new trial. Respondent’s theory, and claim, then was and now is that the homicide was committed by another, that he was not present at all nor in any manner a party to it, and was wholly innocent. He was solicitous until after the verdict that the question of manslaughter should be excluded from the case, and to this he was entitled under the theory and attitude of both parties. The prosecution based its claim for conviction of murder in. the first degree on homicide while robbing or attempting to rob — that or nothing. The court fully and distinctly charged the jury that if robbery, or attempted robbery, by respondent was. not shown beyond all reasonable doubt, he must be acquitted.

We find no occasion, under the circumstances shown here, to reverse this conviction for a claimed omission to charge the jury upon a point not then recognized by either side as tenable, not presented by any request, and not brought to the attention of the trial court by exception. People v. Brott, 163 Mich. 150 (128 N. W. 236).

The prosecutor was permitted upon re-direct examination of Jagge to show that respondent had told him of the commission of other offenses for which he had never been arrested. This followed a line of cross-examination as to the relations between respondent and Sprague and respondent and Jagge implying the improbability of respondent confiding to Jagge the facts of his culpability in this case as Jagge had related, It was offered by the prosecution to show intimacy and confidence between the parties to support' probability of the witness’ story. Though suggesting it was dangerous ground, the court at first admitted the answers for such proposed purpose, stating in that connection it would not be competent to show respondent did in fact commit the offenses mentioned; but after some discussion the court granted a motion of respondent’s counsel “that all this testimony be stricken out,” and told the jury: “Do not consider it in any way. * * * You will pay no attention to it.” It is urged that the prosecuting attorney managed to get this prejudicial testimony before the jury under the specious argument repudiated in People v. Schweitzer, 23 Mich. 301, and striking it out could not cure the mischief thus done. This testimony was promptly ^stricken out and the jury instructed to disregard it while the matter was fresh in their minds. That instruction was repeated and emphasized in the charge. It is urged by the prosecution that such evidence was competent for the purpose stated and should have been allowed to stand under the rule that offered testimony which is competent for one purpose and incompetent for another should be admitted, followed by instructions to the jury as to how and for what purpose only it may be considered. This seems questionable under some of our authorities, but the testimony was not permitted to stand, was not in the case, the jury was distinctly so instructed by.the court and cautioned more than once to entirely disregard it. Under the facts and circumstances shown here, prejudicial error will not be presumed. In People v. Droste, 160 Mich. 66 (135 N. W. 87), it is said:

“It must be presumed that the jury considers only the testimony permitted by the court to stand.”

The alleged prejudicial conduct on the part of the prosecuting attorney relates in the main to his attempts to introduce incompetent testimony and remarks in that connection. The evidence of the prosecution was necessarily indirect and circumstantial, built up largely from the fragmentary testimony of numerous-witnesses to separate facts confirmatory of Jagge’s testimony, furnishing links in the claimed chain of circumstantial proof. Respondent was represented by competent counsel, well qualified to protect his rights, and promptly urge objections to any questionable testimony offered by the prosecution which, as objections were made, naturally give rise to active discussion.

Serious objection is urged against the conduct of the prosecuting attorney in attempting to introduce a photograph of the deceased in evidence. It was claimed by the prosecution that Sprague was in the habit of wearing a diamond stickpin in his tie, and when Jagge testified that respondent showed him a diamond, which he described as “a kind of clover-shaped,” he was shown a photograph of Sprague and asked if “that diamond in the tie is the diamond you see.” To which he replied that it was that shape and looked like it. The picture was then offered in evidence, and counsel for respondent said, “I object to the picture.” The court held that the photograph was not competent, but suggested that, if there was any way of getting a picture of the diamond “by cutting that out,” it might be introduced. A witness named Wood, who testified that Sprague lost his stickpin and later found it in his pocket, was shown the photograph, and, asked if “this is the stickpin you have reference to,” said: “Very similar; the same one.” The court said, in reply to a remark of the prosecutor as to its admissibility, that the picture of the stickpin would be proper, but not a picture of the deceased. Jagge had testified that respondent once told him of Sprague leaving his diamond lying around and that he would get his hands on it if he could. On cross-examination respondent testified he thought he had seen Sprague wear his pin and, being shown the picture of deceased, was asked if that was the pin he had seen him wear, to which he replied: “It looks like it, so far as I can see in the photograph; it must be his pin.” No objection was made at this time or when Wood was shown the photograph. When objection was made, no reason was stated. The photograph of deceased was not admitted in evidence or exhibited to the jury. If the use made of the photograph was improper, which we question, the objection as made furnished no basis for an assignment of error.

That the prosecutor at times apparently manifested zeal without knowledge of applicable rules of evidence, and thereby put an extra burden on the trial court, is indicated by some of the questions asked. The following transactions so indicating are urged as prejudicial and reversible error: Respondent had testified on his direct examination that he served time in Ionia for forgery and came out on November 18, 1915; on the afternoon of Wednesday, January 19, 1916, he went to Ionia to obtain permission to work in Detroit after getting a written permission from his “first friend.” Interrogated upon cross-examination in relation to his connection with Jagge in that transaction, the following occurred:.

“Q. Isn’t it a fact that when you and Vincent Jagge were before Mr. Hyde, the probation officer, that you were told if you were out of town Vincent Jagge would be better off?
“A. I can’t recall any such statement.
“Mr. Herman: Just a minute. I object to that as wholly irrelevant and immaterial.
“Mr. Barnard: It was in the presence of the accused.
“The Court: It may be stricken out, what somebody outside said about a man, it can’t be used against him. It may be stricken out.”

On rebuttal, Mr. Hyde was called by the prosecution, and the following occurred:

“Q. Whether or not you had occasion to have Lawrence Page and Vincent Jagge under your charge when they were under parole on the charge of forgery?
“Mr. Herman: There is no dispute about that.
“The Court: It is not competent anyway.
“Mr. Barnard: These are only preliminary questions.
“The Court: There might be some impeaching
questions that are competent. You better ask him directly the impeaching questions.
“Q. The question I want to ask you is this: After Page was. sent away to prison, didn’t you have any further trouble with Jagge?
“Mr. McKenna: It doesn’t rebut anything.
“The Court: It would not be competent.
“Mr. Barnard: For this purpose. I asked Mr. Page if it was a fact that he knew when he was sent to prison if Ed. Hyde did not state that Jagge was all right; he had no further trouble with him?
“Mr. Herman: Just a minute.
“The Court: It would not be competent. The jury will pay no attention to that statement.”

That the proposed testimony was incompetent and the attempt to introduce it improper was promptly ruled and emphasized by the court, and the jury cautioned to pay no attention to it. Jagge was an early witness in the trial, which extended from the 6th to the 16th of June, inclusive. His close association with respondent was not questioned, and on cross-examination his record and shortcomings were caustically reviewed. Almost from the beginning his derelictions and respondent’s were put in comparison under the indicated theory that any questionable conduct of the latter was attributable to his influence. This was dwelt upon by respondent’s counsel in stating the defense to the jury, and it was said, amongst other-things:

“We will show you that Lawrence did numerous things that way he ought not to have done. * * * We will show you that he did disabuse the old man’s confidence; that he did forge his name.”

Under this situation we cannot find that an unsuccessful effort of the prosecution to introduce incompetent testimony to meet defendant’s theory which was promptly condemned by the court amounted to such prejudicial conduct affecting the merits of the controlling issue as to demand reversal.

In People v. Swartz, 118 Mich. 292 (76 N. W. 491), a murder case where prejudicial error was assigned on conduct of the prosecutor similar in many respects to that complained of here, it was said:

“The zeal of counsel ‘in an important and closely contested criminal case is apt to lead them to extreme expressions; but where the court directs and controls the trial, and promptly checks the attorney wnen he attempts to go further than his duty calls him, and properly instructs the jury to disregard the improper remarks, the verdict should not be set aside because, before this is done, an improper sentence has dropped from the lips of counsel.”

Further discussion of alleged errors would serve no useful purpose. An examination of this record as a whole leads to the conclusion'that the trial was impartially controlled and directed by the court, and respondent’s rights were conservatively guarded by the monitions and adverse rulings on the occasions pointed out where it is claimed improper argument or questionable testimony were attempted by the prosecution. The court’s instructions to the jury were full, explicit, and able, with especial emphasis and caution for respondent’s protection on the presumption of innocence, burden of proof, to convince each juror beyond any reasonable doubt, the rules of circumstantial evidence with particular caution as to the great care to be exercised in drawing inferences from proven facts, which could only be considered at all after each was established to their satisfaction beyond all reasonable doubt; that all assertions or suggestions not sustained by proof should be disregarded; that any testimony or admissions of respondent's prior misconduct should only be considered as bearing upon his credibility, and not as evidence of his guilt under the charge against him, saying among other things the evidence alone could be considered by them, and:

“The evidence comes from the testimony of the witnesses that you have heard here upon the stand, and you consider only that which was admitted in evidence; anything that was excluded or stricken out after it was received you will not consider. * * *
“And again let me say to you, gentlemen of the jury, that, if any statements have crept into this case from which you might infer that the respondent here has been guilty of any other offense or offenses than the one that I have mentioned of forgery you will not consider them as bearing upon the guilt of the respondent in this case. The respondent is here upon trial for the offense only that is charged in the information in this case, and he is not to be prejudiced in this case, or convicted in this case, by reason of the commission of any other offense. These charges, if any, or insinuations, if any, against the respondent concerning other matters, should be wholly disregarded by you. * * * ”

We are impressed that respondent had at the hands of the court and jury a fair and impartial trial, disclosing no prejudicial error demanding reversal. Aftey examination and consideration of the entire case as disclosed by this record, we are not of the opinion that it affirmatively appears the errors complained of have resulted in a miscarriage of justice.

The conviction is therefore affirmed.

Kuhn, C. J., and Stone, Ostrander, Bird, Moore, and Brooke, JJ., concurred. Fellows, J., did not sit.


author: Stone, J.

text:
      In re BROWN’S ESTATE.
    1. Perpetuities — Charitable Bequests — Statutes—Validity.
    Act No. 122, Pub. Acts 1907, providing that charitable bequests otherwise valid shall not be invalid by reason of the “indefiniteness or uncertainty of the persons designated as the beneficiaries thereunder in the instrument creating the same, nor by reason of the same contravening any statute or rule against perpetuities,” is constitutional.

    2. Wills — Charitable Bequests — Failure to Comply with Conditions — Alternative Legacies.
    The next of kin cannot claim title to bequeathed property, although a charitable corporation to which is bequeathed property in trust for charitable purposes is unable to take because the trust is invalid as to it, where there are valid alternative legacies to two cemetery boards, as the title to the property would pass at the testator’s death, eo instanti, to such boards, and although the bequest to one of the boards is inoperative because of failure to comply with the conditions imposed by the will, the other board, in such event, being entitled to the latter’s share under the terms of the will.
    3. Executors and Administrators — Probate Courts — Estates of Decedents.
    Proceedings in the probate court in the matter of estates of deceased persons are proceedings in rem, or proceedings to determine the status of the estate, and not proceedings inter partes between the various claimants.
    4. Wills — Charitable Bequests — Alternative Legacies.
    The fact that alternative legatees of a charitable trust do not appeal from a decision of the probate court directing the disposition of the residue of an estate is not important.
    Error to Calhoun; North, J.
    Submitted April 3, 1917.
    (Docket No. 16.)
    Decided December 27, 1917.
    Mary E. Winsor presented her final account as executrix of the last well of Charles Pratt Brown, deceased. On order of final distribution, Calista R. Eastman petitioned for distribution to her as sole heir at law. On the death of petitioner, Joseph J. Kennedy, administrator with the will annexed, was substituted in her stead. The will was sustained in the probate court and an order of final distribution entered, from which order petitioner appealed to the circuit court. Judgment affirming the order of the probate court. Petitioner brings error.
    Affirmed.

      Chamberlain, Denby, Webster & Kennedy (George B. Andrews, of counsel), for appellant.

      Charles L. Dibble, for appellee Ella E. M. Brown Charitable Circle, legatee.

      Winsor & Miller, for appellee executrix.

      James W. MacJcey, City Attorney (George H. South-worth, of counsel), for appellee city of Marshall) alternative legatee.

       For authorities passing on the question of right to enforce general bequest for charity or religion, generally, see comprehensive note in 14 L. R. A. (N. S.) 49, specifically as to effect of rules against perpetuities, see page 66 of said note. 37 L. R. A. (N. S.) 993.

   Stone, J.

Charles Pratt Brown died on the 24th day of July, 1910, being at the time of his decease an inhabitant of the city of Marshall, Mich. He left a last will and testament bearing date December 1, 1908, a copy of which appears in the record. This will was duly admitted to probate by the probate court for Calhoun county on August 28, 1910, and no appeal was taken from the order. Upon the admission of said will to probate, the execution thereof was committed, and the administration of the estate was granted to Mary E. Winsor, the executrix named in the will, who gave a proper bond, and letters testamentary were issued to her. As such executrix she filed, in due course, an inventory of said estate embracing personal property appraised at $32,844.73, and several parcels of real estate appraised at $4,861.90, one of which parcels of real estate was the home residence of the testator, located at the northwest comer of Prospect and High streets, Marshall. The will is a very lengthy document, consisting of a preamble, embodying explanatory or introductory matter, and the body of the instrument consists of 18 paragraphs or items. The 1st, 2d, 3d, 13th, 14th, 16th, 17th, and 18th paragraphs concern the interment of testator’s body, the erection of a suitable monument on his burial lot in Oakridge Cemetery, at Marshall, Mich., and the care and maintenance of said lot, the payment of just debts and expenses of funeral and last sickness,'the care and maintenance of a cemetery lot at Richmond, Vt., where relatives of testator are buried, the filling of the vacancy to be caused by death, removal, resignation, or incapacity of the executrix or trustee, certain directions in favor of a sister of testator’s deceased wife, and the naming of Mary E. Winsor as sole executrix and trustee of his will; and relative to those paragraphs there is no controversy involved in this appeal:

The 4th paragraph of said will is as follows:

“It is my will and I hereby give, devise and bequeath unto my executrix hereinafter named, but in trust only for the purpose or purposes hereinafter' stated and set forth, seventy-five per cent, of all my property remaining after the payment of the bequests hereinbefore and hereafter set forth, the same to be held and invested by my executrix as trustee, for a period not longer than two years from the date of the probating of this, my last will and testament, and then, or before if possible, pay over to the trustees of a corporate society composed of citizens and residents, male or female or both, of the city of Marshall, Michigan, who have become legally incorporated under the laws of the State of Michigan, for charitable and benevolent purposes, and to be incorporated under the name of ‘Ella E. M. Brown Charitable Circle,’ with power to take, receive and be endowed, and safely keep and protect from loss, the bequests herein made, for the purpose of endowing in part an institution in the city of Marshall, to be operated forever by such charitable and benevolent organization or its successors, and to be called and named ‘Brown Hospital,’ and to be located, established and maintained by said organization or corporation from the income only of my bequests, with all the assistance that may be received or given by charitably inclined persons of the said city of Marshall and elsewhere, and that the building or buildings used and controlled by said corporation for the purposes of said hospital, shall be located on the site and premises of my present home residence at the northwest corner of Prospect and High streets in the city of Marshall, Calhoun county, Michigan, said bequests in this, my will, madé for the purposes aforesaid within the time aforesaid. And should said association have become incorporated as aforesaid and with sufficient safeguards to safely keep and administer my bequests, using only the income thereof, for any purposes whatsoever, it shall before receiving any of the benefits of these, my bequests, or any other or further bequests, by its charter or by-laws, make adequate and sufficient provisions for the absolute safety of all moneys and property devised, bequeathed and committed to the custody of the officers and. trustees of such corporation, to prevent loss, default or dishonesty of any of such officers and trustees to the: injury of the institution or depletion of the bequests and gifts hereby made. And when all such bequests and enactments as are heretofore stated and set forth,' have been complied with within the time aforesaid, then and not until then shall my said executrix as trustee, pay over said bequests to said corporation.”

The 5th paragraph prescribes the qualifications of the officers, and managers of the corporation contemplated by the 4th paragraph.

The 6th paragraph is as follows':

“It is my will .and I hereby direct, that the object of these bequests shall be the support and maintenance bf ‘Brown Hospital,’ for the use and benefit of such patients and afflicted and injured people, as may be cared for by said association and corporation, without regard to sex, color or condition, and that those able to pay for the benefits received, with care, nursing and medical attendance in said hospital, shall be charged such reasonable sums therefor as said officers, managers and trustees may by their laws from time to time determine and specify, and may' admit into said hospital and care for those so admitted in like manner as they may deem proper and as their income and funds may permit, although such patients may be poor and unable to pay.”

The 7th paragraph is as follows:

“It is my will and I hereby give, devise and bequeath unto my executrix hereinafter named, but in trust only for the purpose or purposes hereinafter stated and set forth, twenty-five per cent, of all my property, both real and personal, remaining after the bequests in the second and third paragraphs of this, my will, have been performed and paid, the same to be held and invested by my said executrix as trustee for a period not longer than two years from the probating of this, my last will and testament, and then or before if possible, pay over to the trustees of a corporate society composed of citizens and residents, male or female, or both, of the town of Richmond, State of Vermont, who shall have become ^legally incorporated under the laws of the State of Vermont, for charitable and benevolent purposes, and to be incorporated under the name of "Laura Whitney Brown Charitable Circle/ with power to take, receive and be endowed and safely keep and protect from loss, the bequests herein made for the purpose of endowing in part, an institution in the town of Richmond, State of Vermont, to be operated forever by such charitable and- benevolent organization or its successors, and to be known and called ‘Brown Hospital/ and to be located, established and maintained by said organization or corporation from the income only of this, my bequest, with such assistance as may be received or given by charitably inclined persons of the State of Vermont and elsewhere, and that the building or buildings used and controlled by said corporation for the purpose of said hospital shall be located in the town of Richmond aforesaid. Said bequest in this, my will, made for the purpose aforesaid within the time aforesaid. And should said association have become incorporated as aforesaid and with sufficient safeguards to safely keep and administer my bequest under the laws of the State of Vermont, using only thev income thereof for any purpose whatsoever, it shall before receiving any of the benefits of this, my bequest, or any other or further bequest, by its charter or by-laws make and provide adequate and sufficient provisions for the absolute safety of all moneys and property devised, bequeathed and committed to the custody of the officers and trustees of such corporation, to prevent loss, default or dishonesty of any of such officers and trustees to the injury of the institution or depletion of the bequest and gift hereby made. And when all such bequests and enactments as are hereinbefore stated and set forth to be performed, have been completed within the time aforesaid, then and not until then shall my said executrix as trustee, pay over said bequest to said corporation.”

The 8th paragraph prescribes the qualifications of the officers and managers of the corporation contemplated by paragraph 7.

• The 9th paragraph defines the object of the bequest as set forth in paragraphs 7 and 8, and is substantially in the same language as paragraph 6, above quoted.

The 10th paragraph is as follows:

“It is my will and I hereby direct, that should such legal society and corporation in the city of Marshall, with all of the required conditions as set forth in the 4th, 5th and 6th paragraphs of this, my will, be not formed or in existence and ready to take and receive said property within the time limited, to wit, two years from the probating of this, my said will, then in that cáse I hereby devise and bequeath all of the seventy-five per cent, of my said property together with all interest, subject to the bequests hereinbefore and hereinafter made, and hereby direct my said executor or trustee to forthwith pay the same over to the corporation, should there be one formed and in existence as set forth in the 8th and 9th paragraphs of this, my will, if said corporation is legally prepared to receive and administer the funds as in said 8th and 9th paragraphs contained.”

The 11th paragraph is as follows:

“It is my will and I hereby direct, that should such legal society and corporation in the town of Richmond and State of Vermont with all of the required conditions as set forth in the 8th and 9th paragraphs of this, my will, be not formed and in existence and ready to take and receive said property within the time limited therein, to wit, two years from the date of the probating of this, my will, then in that case I hereby devise and bequeath twenty-five per cent, of my said property, together with all interest thereon, subject to the bequests hereinbefore and hereinafter made, and hereby direct my executrix or trustee to forthwith pay the same over to the Ella E. M. Brown Charitable Circle of the city of Marshall, Michigan, provided said last-mentioned society has been incorporated and perfected as hereinbefore in my said will set forth.”

The 12th paragraph is as follows:

“Should neither of said corporations or associations in Marshall, Michigan, or Richmond, Vermont, be incorporated under the laws of said States as hereinbefore set forth, and not be ready to receive, accept and take legally the moneys and property hereinbefore willed to them under the conditions in said will contained, in the time, to wit, two years from the probating of my said will, then in that case it is my will and I hereby direct that seventy-five per cent, of my property, less the bequests hereinbefore and hereinafter set forth, shall be paid over to the cemetery board of control of the city of Marshall, Michigan, they to receive and invest the same in permanent interest bearing securities and the income therefrom to be used by said cemetery board of control forever for beautifying and improving Oakridge cemetery in the city of Marshall. And that 25 per cent, of all of my property, save and except the amounts hereinbefore and hereinafter devised, shall be paid to a cemetery board which has been or will be formed to accept and receive the same, in the town of Richmond, State of Vermont, the same to be invested by said board in good interest bearing securities, and the income therefrom to be used by said board of control forever for the beautifying and improving of the cemetery in said town of Richmond where my father, Stephen Uriah Brown, and my mother, Laura Whitney Brown and their children are now buried.”

The 15th paragraph is as follows:

“It is my will and I hereby direct, that should either of said societies or corporations formed and incorporated to receive the bequests hereinbefore set forth, for any reason ever cease to occupy or use the hospitals or to occupy the same as an active association, then and in that case, it is my will and I hereby direct that said bequest to said hospital which ceases to operate as aforesaid, shall be void and the same shall revert to and become the property of the other hospital and corporation formed to receive the same as hereinbefore in this my will set forth, they to have and receive the same under the same conditions as herein-before devised and bequeathed to them. And should both of said societies, or corporations formed and incorporated to receive the bequests herein set forth or for any reason both cease to occupy or use the hospitals or cease to occupy the same as active associations, then in that case jit is my will and I hereby direct that the bequests hereinbefore made to said associations shall become void, and all of said property shall revert to and become the property of the said cemetery boards of control in Marshall, Michigan, and Richmond, Vermont, as in my said will set forth, in the same proportions. as I have disposed of the same to said cemetery boards of control in this, my will, set forth.”

The executrix proceeded in due course with the administration of decedent’s estate, and on May 10, 1913, filed in the probate court her final account. It showed property on hand, real estate $3,820, and personal property $32,525.23. Some of the real estate had been sold.

After the filing of said account, and prior to the hearing thereon, Calista R. Eastman, the appellant herein, filed her petition in said probate court, alleging, among other things, that she was the aunt of said Charles Pratt Brown, deceased, and his next of kin, and as such aunt and next of kin was his sole heir at law and legal distributee; that effect could not be given or allowed to the devises, bequests, and directions in the will of said decedent contained, except those embodied in the 1st, 2d, and 3d paragraphs, and in such part of paragraph 18 as appointed Mary E. Winsor the executrix thereof, for the reason that said devises, bequests, and directions constituted an attempted disposition by the decedent of his property and estate, invalid and void under the laws of the State of Michigan, and that accordingly she, as the next of kin and sole heir at law, was entitled to such residue as might be found remaining in the hands of said executrix upon the hearing of her said final account, and praying inter alia, that the devises, bequests, and directions aforesaid might be declared invalid and void, and that such residue might be assigned to her as next of kin and sole heir at law of said decedent.

Such proceedings were thereafter had and taken in said probate court in connection with said final account that on December 29, 1913, a decree or order of said court was made and entered allowing the said final account as stated, finding that there remained to be assigned to the person or persons, corporation or corporations, entitled thereto, a residue of personal estate of the value of $32,524.90 in said order and decree specified and itemized, and of real estate consisting of several pieces or parcels in said order or decree particularly described; directing also that two specific legacies of $300 each be paid to the cemetery boards at Richmond, Vt., and Marshall, Mich., for perpetual care and maintenance of certain cemetery lots; and ordering that the balance, personal and real, of said residue be assigned to the Ella E. M. Brown Charitable Circle, the corporation which, as determined by the findings of said order and decree, had been duly and seasonably formed by the citizens of the city of Marshall, and that any and all interest, income, rents, and profits arising from all of said estate, since the filing of the final account of said executrix up to the date when the said executrix transferred said estate to said corporation, the Ella E. M. Brown Charitable Circle, should be paid to said corporation, less reasonable expenses, etc. Said Calista R. Eastman duly appealed from said order or decree to the circuit court.

The Ella E. M. Brown Charitable Circle was organized under Act No. 171 of the Public Acts of Michigan of 1903 (2 Comp. Laws 1915, § 9054 et seq.), which provides for the incorporation of associations not for pecuniary profit. The articles of association were dated and executed on July 25, 1912, and duly recorded during that month.

Such proceedings were had and taken in the circuit court upon such appeal that on or about October 2, 1915, judgment was entered therein by said court affirming in all things said order and decree of said probate court, and remanding the cause to that court for such further proceedings as should be fit and proper in the premises. At the final hearing of said appeal in the circuit court, appellant’s counsel filed written request for findings of fact and law, and in compliance with such request the circuit judge, in rendering his decision, made and filed written findings of fact and law as follows:

“Findings of Fact.
“(1) I find as a matter of fact that Charles Pratt Brown died on, to wit, the 24th day of July, 1910, and at the time of his death he was an inhabitant of the city of Marshall,_ Calhoun county, Mich., and that he left as his last will and testament the instrument purporting to be such on file in the probate court in the proceedings from which this appeal has been taken.
“(2) I further find that the provision in said will by which a conditional gift was made to the citizens or residents of Richmond, Vt., has not beco.me operative by reason of a failure to comply with the conditions precedent embodied in such bequest.
“(3) I also find that all of the conditions precedent to the vesting' of the bequest provided in said last will and testament for the Ella E. M. Brown Charitable Circle have been complied with.
“Findings of Law.
“(1) I find as a matter of law that Act No. 122 of the Public Acts of 1907 is constitutional, and therefore valid and in full force and effect.
“(2) I also find as a matter of law that the instrument purporting to be the last will and testament of Charles Pratt Brown is such in fact and in law and is valid and binding in its provisions.
“ (3) I further find as a matter of law that the provision in said last will and testament whereby the Ella E. M. Brown Charitable Circle is made the residuary legatee under said will is valid and effective, and that the title of the residue of said estate has vested in the sáid Ella E. M. Brown Charitable Circle.
“(4) It is also determined as a matter of law that the order made in the probate court in the estate of Charles Pratt Brown, deceased, from which this appeal was taken, was a valid order and that the same ought to be affirmed.”

The learned circuit judge in his general finding also said :

“Exhaustive briefs have been filed by the respective counsel and-duly considered. In addition to this, oral arguments have been heard, and the case was finally submitted after the decision of the Supreme Court in the case of Loomis v. Mack, 183 Mich. 674 (150 N. W. 370). After giving the matter a good deal of consideration, I am of the opinion that the bequests should be held to be valid. I am brought to this conclusion not only by the conviction that it is the duty of the .court to follow the law as it was -finally adjudicated in the case above cited, which amounted to a confirmation of the holding of the circuit court, but, even in the absence of this decision, I would be of the opinion above expressed. Certainly Act No. 122 of the Public Acts of 1907 was intended to cover a field of much-needed legislation, and it ought to be sustained, unless the constitutional objections urged against it are such as to foreclose such a holding. In addition to this, the last session of the legislature passed an act (Act No. 280, Pub. Acts 1915) which was intended to legalize gifts of this character, even assuming that it would be otherwise invalid; and while it may be a question as to what, if any, effect this latter can have upon this litigation which was pending in court at the time the act became a law, still it plainly indicates the desire and intention of the legislature.”

No exception to the findings, or appeal from the judgment of the court based thereon, has been had or taken by or on behalf of the city of Marshall, or by or on behalf of the cemetery board of control of said city. Said city and its board of cemetery trustees, by their attorney, appeared in the probate court as parties in interest under the will, but did not there contest the validity of any portion of said will, nor deny the authority or right of the Ella E. M. Brown Charitable Circle to receive the devises and bequests therein provided in its behalf; neither was any appeal taken by said city or its cemetery board from the order or decree of distribution entered .by the probate court. The city, however, entered its appearance in the circuit court, and was permitted, over objection of appellant’s counsel, to introduce in evidence certain sections of its charter and ordinances defining its powers in reference to cemeteries, and the receipt and administration of moneys for the care and maintenance thereof; also evidence of the ownership by the city of a cemetery known as Oakridge Cemetery, the management thereof under authority of the city charter by a cemetery board of control, and the ownership of a burial lot therein by the testator at the time of his death. The city did not, in the circuit court, deny the validity of any portion of the will, nor question the right of the Ella E. M. Brown Charitable Circle to take thereunder, but, as stated in open court by the city attorney, the purpose of its appearance, in both the probate and circuit courts, was merely to show that the city, “on behalf of the cemetery board of control,” was qualified to take under the will, “if for any reason' the court should hold that the Ella E. M. Brown Charitable Circle is not a proper receiver under the will.”

Appellant, in due course, proposed findings, of fact and law as amendments of, and in lieu o.f, such original findings. The court denied appellant’s application in so far as it asked that said proposed findings of fact and law be made in lieu of the court’s said original findings, but found certain of said proposed findings of fact to be true and established in the case.

Appellant’s proposed finding of fact No. 12 was denied. It was as follows:

“That the Ella E. M. Brown Charitable Circle, of Marshall, Mich., has not complied with the conditions precedent to the vesting in it of the bequest provided in said last will and testament of said deceased.”

Said findings of law Nos. 4 and 6, as proposed by appellant and allowed by the court, are, respectively, as follows:

“ (4) I do further determine as a matter of law that the citizens and residents of the town of Richmond, Vt., can take nothing under the provisions of the 7th, 8th, 9th, 10th, and 15th paragraphs of the will of Charles Pratt Brown.”
“ (6) I do further find as matter of law that the alternative bequest of the cemetery board, which has been or will be formed to accept and receive the same in the town of Richmond, Vt., is inoperative, and that the said cemetery board can take nothing under the provisions of the said will of Charles Pratt Brown.”

Said finding of law No. 5, which was allowed by the court with modification, was, as proposed by appellant, as follows:

“I do further find as matter of law that the city of Marshall, Mich., can take nothing under the alternative bequests and devises embodied in the 12th and 15th paragraphs of the said will of Charles Pratt Brown.”

This finding was modified as follows:

“And further I find as I am requested in the proposed finding of law number 5, but with this modification, that in the event of the failure of the Ella E. M. Brown Charitable Circle to take title to the bequest made thereto by the terms of the will of said Charles Pratt Brown, then I find as a matter of law that the city of Marshall would take title to said bequest.”

Among the things found as established facts in the case by the court was the finding that Calista R. Eastman was the next of kin and sole heir at law of said deceased.

Exceptions to the findings of fact and law, as finally made by .the court, were duly filed on behalf of appellant. The case is here upon writ of error, with assignments of error covering the questions presented.

After perfecting her appeal in this court, Calista R. Eastman died testate in Vermont, the State, of her domicile, and her will, after due probate there, was admitted to probate as a foreign will, pursuant to the statute, in this State, and Joseph J. Kennedy was appointed administrator with the will annexed of said estate. He, having qualified, has been substituted as appellant here.

The contention of appellant is that all the trusts attempted to be created by this will are void, and that, the scheme of disposition of the residue of testator’s estate through them being illegal, such residue must go to his next of kin as intestate estate. The grounds of the contention are:

(1) That, if otherwise valid, the trusts must fail because they all involve and are builde.d upon the suspension of the absolute power of alienation of real estate for a period of time and not measured by life.
(2) That, aside from the suspension of alienation, the trusts are invalid as being perpetuities for uncertain and indefinite objects and beneficiaries.

The suspension of the power of alienation. This branch of appellant’s argument is based on the provisions of chapter 237, 3 Comp. Laws (3 Comp. Laws 1915, chap. 220), relating to estates in real property, and particularly sections 8796 and 8797 (3 Comp. Laws 1915, §§ 11532, 11533) thereof. Attention is called to the fact that the provisions of this chapter were originally enacted in the State of New York, and later adopted literally into the statutes of Michigan; that by a construction of the above-named sections placed upon them prior to their adoption in Michigan, and since uniformly adhered to, the courts of New York have held in many cases that the statute itself fixes an absolute and exclusive rule for limiting suspension of the power of alienation of real estate, and that the period of suspension permitted by section 8797 can in no case be measured by time alone, but must be based on the duration of life, or lives not exceeding two, in being, and that an attempted suspension for a period of time, however short, not in some form confined to the duration of a life or two lives, falls within the provisions of section 8796 declaring the future estate 'limited on such suspension to be “void in its creation”; that this is so because the statute fixes no time, but only the duration of lives in being, not exceeding two, as the permissible meas-use of suspension; and that any period of time, however short, whether expressed in time units or determinable by any other measure of duration or contingency not circumscribed by a life or two lives in existence, exceed the duration of any two lives in being; and that the test to be .applied to determine the validity of the suspension in a given case is not that it must exceed the duration of two lives in being under all circumstances, but whether by any possibility it may do so under any circumstances. Counsel cite Coster v. Lorillard, 14 Wend. (N. Y.) 265; Hawley v. James, 16 Wend. (N. Y.) 61, and many other cases in support of this contention, and many Michigan cases, among which are State v. Holmes, 115 Mich. 456, 459 (73 N. W. 548); FitzGerald v. City of Big Rapids, 123 Mich. 281, 283 (82 N. W. 56); Casgrain v. Hammond, 134 Mich. 419, 429 (96 N. W. 510, 104 Am. St. Rep. 610).

2. It is urged by counsel for appellant that the trust for the establishment and maintenance of Brown Hospital, in the city of Marshall, is a perpetuity, and for use of indefinite and uncertain beneficiaries, and is void for these reasons under the law of Michigan as declared in the following cases: Methodist Episcopal Church v. Clark, 41 Mich. 730 (3 N. W. 207); Hopkins v. Crossley, 132 Mich. 612 (96 N. W. 499); Stoepel v. Satterthwaite, 162 Mich. 457 (127 N. W. 673); Wheelock v. Tract Society, 109 Mich. 141 (66 N. W. 955, 63 Am. St. Rep. 578); Lounsbury v. Burial Ass’n, 170 Mich. 645, 647 (129 N. W. 36, 137 N. W. 513).

It is urged that it follows that this trust must fail, for the reasons stated, unless the law, as declared in the above-cited cases, has been changed by Act No. 122 of the Public Acts of 1907, and that this, in turn, depends upon the validity of that act. Attention is called to the fact that the constitutionality of that statute was sustained by the equal division of this court. Counsel for the appellee Ella E. M. Brown Charitable Circle calls attention to the fact, that section 8839 (3 Comp. Laws 1915, § 11575), contains a fifth clause, which does not appear in the New York statute, to wit:

“For the beneficial interest of any person or persons, when such trust is fully expressed and clearly defined upon the face of the instrument creating it, subject to the limitations as to time prescribed in this title.”

It is also pointed out that the New York statute respecting restraints on alienations applies to personal property as well as real estate, while our statute applies only to real estate, and that consequently in this State, unlike New York, the rule against perpetuities as to personal property is that of the common law; citing Penny v. Croul, 76 Mich. 471 (43 N. W. 649, 5 L. R. A. 858); Toms v. Williams, 41 Mich. 552, 562 (2 N. W. 814); Ledyard’s Appeal, 51 Mich. 623, 625 (17 N. W. 208).

It is the claim of counsel for said appellee that the bequest to it is valid, and that the appellant cannot complain of the judgment below for the following reasons: (1) Because this appellant has no standing in court, since he would not be entitled to the residue, even if the bequest to the Brown Charitable Circle were invalid; that if the judgment below was erroneous, neither Mr. Kennedy, as administrator, nor Mrs. Eastman, had she lived, would have had any right to complain of that fact, for the reason that Mrs. East--, man did not in any event become entitled to the residue of that estate; for in the event that the bequest to the Brown Charitable Circle failed, because it could not “take legally” the moneys and property, then the. gift was vested at once in the alternative legatees, the cemetery boards; and that the fact that these alternative legatees did not appeal does not foreclose their rights. (2) Because, if there were any invalidity in either of the respects contended for by counsel for appellant, it is cured by Act No. 122 of the Public Acts of 1907, as supplemented by Act No. 280 of the Public Acts of 1915, and that both are constitutional, and that the latter act was operative when judgment below was entered. (3) That, even if these acts were unconstitutional, the gift contained in the will was not in violation of the rule against perpetuities, even as to the real estate, and that, in so far as the personal estate is concerned, the will is valid, and that the two species of property are separable, and if for any reason this court should hold the gift of the real estate invalid it should sustain the gift as to the personalty.

Taking up the second point of appellee, it seems to us that, if Act No. 122 of the Public Acts of 1907 is to be held constitutional, it covers, controls, and disposes of both of appellant’s main propositions. The first section of that act is as follows:

“No gift, grant, bequest or devise to religious, educational, charitable or benevolent uses which shall in other respects be valid under the laws of this State, shall be invalid by reason of the indefiniteness or uncertainty of the persons designated as the beneficiaries thereunder in the instrument creating the same, nor by reason of the same contravening any statute or rule against perpetuities. If in the instrument creating such a gift, grant, bequest or devise, there is a trustee named to execute the same, the legal title to the lands or property given, granted, devised or bequeathed for such purposes, shall vest in such trustee. If no trustee shall be named in said instrument, or if a vacancy occurs in the trusteeship, then the trust shall vest in the court of chancery for the proper county, and shall be executed by some trustee appointed for that purpose by or under the direction of the court; and said court may make such orders or decrees as may be necessary to vest the title to said lands or property in the trustee so appointed.”

In January, 1915, this court, in Loomis v. Mack, 183 Mich. 674 (150 N. W. 370), by an equal division, held that act constitutional. Its title was attacked. By Act No. 280 (3 Comp. Laws 1915, § 11099 et seq.) the legislature of 1915 amended the title, and broadened somewhat the language of section 1. Section 3 provided that—

“all gifts, grants, devises or bequests made in pursuance to the provisions of act number one hundred twenty-two of the Public Acts of nineteen hundred seven, and of the acts amendatory thereof, and all pror ceedings and acts performed in accordance therewith are hereby validated.”

This is significant at least as showing the changed policy of the State upon the subject as expressed by the legislature. Act No. 122, Pub. Acts 1907, until repealed by the broader act of 1915, laid down a new policy, which has been followed for more than 10 years. It has been acted upon as a rule of property. In my opinion we should declare the original act constitutional and effective. I think that act controlling of the instant case, and that the judgment of the circuit court should be affirmed.

While not necessary to the disposal of the case, I am of the opinion that appellee’s first position, that appellant has no standing in court because of the alternative legacies to the cemeteries, is well taken, and that the rule as stated in Cruikshank v. Home for the Friendless, 113 N. Y. 337 (21 N. E. 64, 4 L. R. A. 140), applies; and that, if the Ella E. M. Brown Charitable Circle could not have taken, as matter of law the property would have passed at the testator’s death, eo instante, to the cemeteries named, notwithstanding the sixth conclusion of law as found, that the bequest to the cemetery board of Richmond, Vt., is inoperative. This is an appeal from a decision of the probate court directing the disposition of the residue of an estate. The nature of the proceeding does not materially differ from a chancery suit for the construction of a will.

We think it is settled in this State that proceedings in the probate court in the matter of estates of deceased persons are proceedings in rem, or proceedings to determine the status of the estate, and not proceedings inter partes between the various claimants. Allison v. Smith, 16 Mich. 405, 416; Stevens v. Hope, 52 Mich. 65 (17 N. W. 698).

And the fact that the alternative legatees did not appeal is not important. So, in any view of the case which we are able to take, the conclusion reached by the learned circuit judge was correct, and the judgment below is affirmed, with costs to the appellee.

Kuhn, C. J., and Ostrander, Bird, Moore, Steere, Brooke, and Fellows, JJ., concurred.


author: Fellows, J.

text:
    LOVELAND v. BUMP.
    1. Appeal and Error — Review—Presumptions.
    Where no bill of exceptions was settled, it will be presumed, upon appeal, that the testimony supported the findings of fact made by the trial judge.
    2. Principal and Agent — Knowledge of Agent.
    The knowledge of the agent is the knowledge of the principal.
    3. Same.
    The rule that knowledge of the agent is knowledge of the principal is applicable where a husband, as agent for his wife, makes a loan, and takes notes as collateral security therefor, the consideration for which is known and is illegal, for his principal, and latter subsequently claims to be a Iona fide holder of such notes.
    Error to Emmet; Shepherd, J.
    Submitted April 10, 1917.
    (Docket No. 115.)
    Decided December 27, 1917.
    Assumpsit by Frances M. Loveland against Matie C. Bump and George W. McCabe, copartners as Bump & McCabe, on promissory notes. Judgment for defendants. Plaintiff brings error.
    Affirmed.

      Mesick & Miller, for appellant.

      Halstead & Halstead, for appellees.
   Fellows, J.

Theodore O. Loveland and J. L. Records are copartners located at Iowa City, Iowa, and do business under the name of Brenard Manufacturing Company. Plaintiff, Frances M. Loveland, is the wife of Theodore O. Defendants comprise the firm of Bump & McCabe, and are located at Petoskey, in this State, where they conduct a retail hardware store. September 16,1914, defendants signed a contract or order of similar purport to the contracts found in the records of the cases of Boston Piano & Music Co. v. Seckinger, ante, 312 (164 N. W. 263), and Harrison v. Grier, post, 672 (165 N. W. 854), handed down herewith. With this contract were detachable notes, as in the Grier Case. September 18th, and before any goods or paraphernalia had been shipped, defendants countermanded the order by wire. Plaintiff claims to be a bona fide holder of the notes. The case was tried before the court without a jury. The trial court filed findings of facts and conclusions of law, holding the contract void, and the plaintiff not a good-faith holder of the notes. Plaintiff brings the case here.

An examination of the records in these three cases would lead to the conclusion that these gift enterprises involved in these cases have a common origin. All the companies are located at Iowa City, Iowa. There seem to be, to some extent, common ownership, and the schemes would appear to have been originated by one mind. They vary in minor details, but in their essential features they are the same. No bill of exceptions was settled, but the finding of facts of the circuit judge bring this case within the cases above cited. We must assume that the testimony supports the findings. It will not be necessary for us to further discuss the question fully considered in these cases. What was. there said must be considered controlling here.

Was the plaintiff a bona fide holder of these notes? The record discloses that it is her claim that these notes were part of the collateral security for a loan made by her to the Brenard Manufacturing Company, but it also shows, and her testimony establishes that her husband, who was the managing partner of the company, was her agent in making this loan and taking this collateral. She also says that the money loaned came from her husband, who, she presumes, earned it in the Brenard Manufacturing Company;: that it had never been in her possession; that it was. deposited in the bank by her husband, and drawn out by her husband as he saw fit, he having full authority to sign checks and loan the money. The rule is too well established to need citation of authority that knowledge of the agent is knowledge of the principal. Plaintiff’s husband, her agent, was the active partner of the business, and knew the consideration for this note and the terms, of this contract. Obviously plaintiff is not a bona fide holder.

The judgment is affirmed.

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