being at the death of Mrs. Green. The gift to Eugene B. Arnold is also for life only, and after his death his heirs become the beneficiaries. We do not know why these gifts to the daughter and son were thus restricted, but it is plain that the decedent intended that the descendants of his children should succeed to the property beyond a peradventure, and that it should not be in the power of the children themselves to prevent it. We need not inquire into the reasons; being sufficient to the decedent they are for legal purposes sufficient to all others.

To guard against his purposes being defeated the persons named as executors were made trustees with very extensive powers. They were given full discretion to sell real and personal estate without taking the advice of the probate court, they were to keep all funds invested, and upon them he relied to save the contingent interests for those who were in mind as future beneficiaries. When the living children and grandchildren undertake by agreement between themselves to appropriate the whole property, they attempt to make a new will for the testator; to take to themselves the fee when he gave life estates only; to relieve themselves from trusts. which he deemed essential; to cut off after-born children who were plainly the special objects of his bounty. But it is plain that this cannot be done without an equal disregard of the will of and the law. The trustees are the representatives of the dead donor in his wishes, and they represent also the future beneficiaries, who, being as yet unknown, can have no other representatives or protectors.

The will was assailed on the ground of mental incompetency. Had the issue been fully and fairly tried in the probate court and decided on the merits, and had the appeal been taken on technical grounds, we should agree that the relators ought not to press it. It would be inexcusable in them to make costs for the estate which they at the outset must know would be incurred in a vain attempt to support a nullity. But there is every reason to believe from this record that the case has not been fully heard, and that the decision went as it did because of the compromise. Under such cir

cumstances the executors have an undoubted right to appeal, for they have substantial interests to protect. Whether they might appeal for the mere purpose of protecting the decedent's reputation, if they believed his competency unjustly assailed, we need not discuss, for in this case such a question does not and cannot arise.

It is urged that the mandamus which is applied for is not a proper remedy. But the purpose is merely to set the court in motion that the appeal may be heard (Comstock v. Wayne Circuit Judge 30 Mich. 98); and it must issue as prayed.

The other Justices concurred.

ALBERT R. HAMMOND V. MARTHA E. WELLS.

Builder's lien-Homestead exemption.

A mechanic's lien cannot be enforced against lands of which there is no written identification in the agreement for the work.

A mortgage given by a married man will not bind the homestead unless it is in writing; nor will a mechanic's lien, if it does not identify the premises by written description.

Charges cannot be imposed on real estate by oral agreements unless there are distinct and positive provisions enabling it to be done.

Appeal from Washtenaw. Submitted October 27. Decided November 10

PROCEEDINGS to enforce mechanic's lien. The petitioner appeals. Affirmed.

Noah W. Cheever for petitioner.

Sawyer & Knowlton for respondent.

GRAVES, J.

This proceeding was taken to enforce a mechanic's lien. The steps to institute the lien were pur

45 11 98 140,

sued under the law as it existed when the Act of May 31, 1879, was adopted; but the suit was brought under the latter statute. The circuit judge after hearing on pleadings and evidence dismissed the petition and the petitioner appealed.

Several questions possessing interest are presented. There is one, however, which is paramount and controlling. It relates to an objection which is insurmountable, and the other points therefore cease to be material.

The lien is asserted as one arising out of the execution of a contract by the petitioner for putting up a dwelling-house for respondent on her lot in the city of Ann Arbor, and he sets forth the contract and alleges performance and the failure of respondent to pay the consideration, and prays a sale of the property.

The point of defense to which attention has been suggested is that from a date long prior to the contract down to the present time the lot has been the respondent's homestead, and as such exempt, and she contends it is exempt from these proceedings. The petitioner admits the fact that for many years and up to this time the lot has been her homestead, but he insists that it is bound notwithstanding, by this proceeding. His exact position is that the transaction enures as a lawful mortgage on the premises and is hence within the exception contained in the constitutional provision for the exemption of a homestead. Article xvi., § 2.

The case is to be decided on the particular facts and the question is brought within very narrow bounds.

The petitioner set down in writing a list of the particulars of a dwelling-house with brief descriptions of materials and of the style and quality of the work, and added what the price would be. The parties appended and subscribed a brief statement of their agreement to such plan and specifications, and that the price should be paid in a given manner. Such was the written agreement. No other writing was made. There was no reference to any site for the building. The writing was silent on the subject. On its face it was as capable of application to the putting up of a building on one site as on another. Hence the identification of the intended

place, if indeed any was understood as fixed upon, was left entirely in parol. And there is no evidence that the respondent contemplated as matter of fact the creation of a charge on any real estate.

For the purpose of the case it may be granted that the effect of the mechanic's lien law, where it is applicable, is to create a species of statute mortgage, whether the contract is written or unwritten and even though the land-holder may not have intended in point of fact to charge his estate; and that in case the contract is written and duly signed and describes the premises to be affected; it will attach and bind even though the place is a homestead. But granting all this, it remains to inquire whether a contract wholly blank in regard to the premises to be built on or affected, is a valid basis on which to establish a lien or statute mortgage by adverse proceedings against what was a homestead at the time of the contract and has so continued. The court is clearly of opinion that it is not.

At common law a mortgage could not be partly in writing and partly in parol, and it has always been deemed necessary that some kind of description of the premises intended to be encumbered should be in writing, and unless there are provisions which are very distinct and very positive to the contrary, the courts will decline to recognize the power to impose charges on real estate by oral agreement. West v. Laraway 28 Mich. 464; Wilson v. Jones 46 Md. 349.

When the Constitution was formed, a mechanic's lien could not be created on real estate unless there was a complete contract in writing, signed, acknowledged and recorded (Rev. Stat. 1846, ch. 126), and the exception contained in the second section of the article on exemptions in favor of mortgages lawfully obtained, was framed in view of the established rule at law that a mortgage, including the description of the premises, must be in writing. The qualification of the exception is very decisive. The mortgage which the exception from the exemption permits must be one that is not only lawfully obtained, but one that is signed by the wife if the maker is a married man. The mortgage then which is referred to and

intended by the Constitution is a written mortgage-a mortgage which may be signed, and therefore one whose signing would be suitable and regular as an act to attest the assent of the parties to the imposition of the burden on designated premises.

By no ingenuity can the contract relied on be brought within this description. It cannot therefore be allowed to operate adversely to the homestead exemption. It is practicable to bring many reasons to the support of this view, but it is not supposed to be necessary to extend the opinion. The decree must be affirined with costs.

The other Justices concurred.

FERDINAND JOHNSON, AU GRES BOOM COMPANY ET AL. V.
THOMAS CRANAGE JR., THOMAS PITTS ET AL.

Boomage-Charges for log driving-Conditional tender.

One who contracts to drive logs to a certain point at a fixed rate is bound to discharge any lien for tolls imposed by river improvement companies.

A tender may be coupled with such conditions as the party making it has a right to impose, such as that he shall receive what a payment or tender legally made would entitle him to.

A tender need not be divided to meet separate claims where they are all held by one person. Where more is demanded than is due, the person making the tender cannot be put in the wrong by requiring him at his peril to separate just from unjust charges.

Whether a boom company must not tender delivery of logs before being entitled to demand boomage charges thereon-Q.

An unambiguous contract cannot be varied in its legal effect by the understanding of the parties at or before its execution; and where the only question is as to its legal meaning, its construction cannot be aided by oral evidence of conversations between the parties.

Error to Bay. Submitted October 28. Decided November 10.