47-47 and 48-47, same has been referred to the owners of the following described lands; and I am directed to advise you that the right of way will be donated, providing the board will provide and make payment for the value of timber to be cut in opening the right of way. The lands herein referred to are the entire section 3, and the N. E. qr. section 9, 47-47, and the S. E. qr. section 33, 48-47, from the south line northerly to the main line of the Duluth, South Shore & Atlantic Ry. Will you please have me advised as to when the board will have the line of the road staked out, so that we can go over it and estimate the amount of timber that will be cut, and also send me map or other description that will give me the width to be cut on our land? We would prefer to estimate the timber after the line is actually staked out on the ground, if practicable, as in that way we will have the correct estimate of the timber. "Dictated S. "Yours truly, J. M. LONGYEAR, Agent. “M.” The plaintiff contends that this testimony does not show that the road commissioners were given authority to cut the two trees standing upon the proposed right of way; and, if the letters were to be so construed, it does not appear that Longyear authorized the writing of said letters, or that he had authority to do so if he did. We think the plaintiff is justified in its contention. The letters indicate a willingness to permit the construction of the highway. They give no authority to do so, or to cut timber, except upon the condition stated therein. They contemplated that the plaintiff should have an opportunity to estimate the timber before it was cut, and did not authorize the cutting of timber until that condition was complied with. It follows that the judgment must be reversed. There is another question raised by the record, which may arise upon another trial. The logs from the two trees, which, upon this record, appear to be the property of the plaintiff, were commingled with the logs from other trees, which the jury must have found to have been cut from lands not belonging to the plaintiff. It is contended, however, that this commingling of the logs resulted in such a confusion of property as to give the plaintiff the title to the whole. The doctrine of accession through confusion of goods is old. Stephenson v. Little, 10 Mich. 433; Wetherbee v. Green, 22 Mich. 317 (7 Am. Rep. 653); Fowler v. Hoffman, 31 Mich. 225. But it involves a forfeiture, and is never applied where it can be consistently avoided. In Wetherbee v. Green it is said: "But this rule only applies to wrongful or fraudulent intermixtures. There may be an intentional intermingling, and yet no wrong intended; as where a man mixes two parcels together, supposing both to be his own, or that he was about to mingle his with his neighbor's, by agreement, and mistakes the parcel. In such cases, which may be deemed accidental intermixtures, it would be unreasonable and unjust that he should lose his own, or be obliged to take and pay for his neighbor's, as he would have been under the civil law. Morton, J., in Ryder v. Hathaway, 21 Pick. 305. In many cases there will be difficulty in determining precisely how he can be protected with due regard to the rights of the other party; but it is clear that the law will not forfeit his property in consequence of the accident or inadvertence, unless a just measure of redress to the other party renders it inevitable. Story, Bailm. § 40; Sedg. Dam. 483." In such cases, as in those where the commingling is lawful, as by agreement, the rule does not apply, and the parties become tenants in common of the whole. 6 Am. & Eng. Enc. Law (2d Ed.), 593, and cases cited. There is no reason why the same rule should not apply in any case where the goods are identical in quality, and of equal value. Id. 597. The law will not deprive a wrong-doer of his property, if it can be justly avoided; and in the case of Mittenthal v. Heigel, (Tex. Civ. App.) 31 S. W. 87, it is said that, when mortgaged property is commingled with property of like kind and equal value, the more equitable doctrine of giving to each party his due proportion will govern, rather than the harsher one of holding the whole subject to the mortgage. See, also, D. M. Osborne & 120 MICH.-18. Co. v. Cargill Elevator Co., 62 Minn. 400; Armstrong v. McAlpin, 18 Ohio St. 184. The record discloses no bad faith, and there is nothing to indicate a difference in quality or value of the lumber of the same kind. If, therefore, the plaintiff was entitled to the product of the two trees, it should have contented itself with a proportionate share of the lumber. The judgment is reversed, and a new trial ordered. MCLAIN v. HOWALD. 1. WILLS-CONSTRUCTION. A testamentary gift, to take effect upon the termination of a life estate in the widow, of a specified sum to "each of the children" of a named daughter, includes not only the children in being at the death of the testator, but those born subsequently during the lifetime of the widow. 2. SAME-CHILD EN VENTRE. A child en ventre sa mere at the termination of the life-estate is also entitled to take under the will. Appeal from Hillsdale; Chester, J. Submitted April 5, 1899. Decided May 23, 1899. Bill by Ora S. McLain and others, infants, by Julian A. Palmer, their next friend, against John Howald, administrator de bonis non, with the will annexed, of the estate of Samuel Helsel, deceased, and Jacob Helsel, Elias Helsel, and Edwin Spitler, residuary legatees, for a construction of said will. From a decree dismissing the bill, complainants appeal. Reversed. W. D. Fast, for complainants. Spencer D. Bishopp, for defendants. HOOKER, J. Samuel Helsel died leaving a will, as follows: "That I, Samuel Helsel, of Amboy, Hillsdale Co., Michigan, being of sound mind and aged seventy-two years, do hereby make and declare this to be my last will and testament: "First. In the event of my death, I give and bequeath to my wife during her natural life, or during her widowhood, all my real estate, wherever situated, to use, occupy, and have all of the benefit to be derived therefrom; also ĺ hereby give or devise to my wife two horses and harness and wagon, and all farming tools, two cows, all household goods, to be stipulated same as the real estate; my wife to keep the farm and buildings in good repair and pay all taxes during her occupancy, as above stipulated. "In the event of the death of my wife, or her remarrying, I hereby direct that my property shall be disposed of as follows, to wit: "To my son Josiah's children, I hereby give or bequeath the sum of one hundred dollars. "To my daughter Rebecca, I give one hundred dollars. "To my daughter Elizabeth, I give one hundred dollars, to be divided between her two children equally. "To my son Samuel Helsel's child, I give fifty dollars (child's name Elizabeth). "To my daughter Catherine's two children, I give one hundred and fifty dollars each. "To my daughter Mary Ann, I give to each of her children one hundred dollars. "To my sons Elias and Jacob and to Edwin Spitler, I hereby give all the remainder of my estate, to be divided equally between them, share and share alike; and I hereby direct that all personal estate that I may die possessed of shall be disposed of and held until the event of the death or remarrying of my wife, and then divided as above stipulated, excepting that already mentioned and arranged for above in this will; the farm to be well taken care of, and no timber used or cut except what may be necessary for the use thereof, in keeping in repair." Mary Ann Helsel had six children. Two were born before the testator's death, and these have been paid $100 each. Three were born after the testator's death, and before the death of the testator's widow, the life tenant, and one was born a few days after her death. The last four claim to be entitled to the sum of $100 each, under the clause contained in the will, i. e., "to my daughter Mary Ann, I give to each of her children one hundred dollars;" and the bill is filed by them for a construction of the will. It is contended that the intention that each child of Mary Ann who was then in existence, or who might be in existence before the time fixed for distribution, should receive $100, is fairly deducible from the will. A cogent argument in support of this proposition is the following, taken from the brief of counsel: "Now, the question is, Did Mr. Helsel intend that the children who might be born after his death to Mary Ann, and before the period of distribution, should take, under his will, $100 each? We answer, 'Yes,' because he very clearly limited and designated the legatees in all of the preceding legacies, except the one to Josiah's children, to whom he gave $100. In all the other bequests he absolutely limited the gift to the number designated and the child named. He went so far as to mention the name of the child of his son Samuel Helsel. And from this we conclude that he intended all of the children of Mary Ann in being at the period of distribution should take under this clause, in view of the fact that he had postponed the time of enjoyment of the legacies till the event of the remarrying or death of his widow. Edward L. McLain was born in the same month the life tenant died. In law, a child is considered born, for all beneficial purposes, while in the mother's womb. Therefore he takes as well as the others, under this clause." * * * * * * While it cannot be disputed that it is the policy of the law to treat estates and rights in property as vested, when practicable (see Doe v. Considine, 6 Wall. 458), there are cases where such rights must give way in favor of other persons. "Thus, where a gift to a class is to take effect after the testator's death, the estate given will be cut down by the birth of others who come within the description before the period or event upon which the gift is to take effect or the distribution is to be made; such will be included as within the probable intention of the |