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tion of this will, and also at the time of his, bequeath the use during his natural life of death, Abel Beebe was the owner in fee sim- the following described real estate, viz.: ple of the following described lands in Porter The west half of the northeast quarter of township, Cass county, viz.: The S. E. 44 section number twenty-two in township numof the S. E. 14 (except one acre in the south-ber 7, south of range thirteen west in the east corner thereof sold for a cemetery), the county of Cass, and state of Michigan, but S. W. 144 of the S. E. 14, and the S. 12 of at the decease of the said Hamaline Beebe the N. W. 14 of the S. E. 14, all of section the said real estate last described to be No. 21; and the W. 162 of the N. E. 14, and equally divided amongst his children if he the W. 14 of the N. W. 14 of the S. E. 14, leaves any, and in case he leaves no chilall of section 22. No dispute arises relative dren then said real estate last described to to the testamentary disposition of the land be equally divided amongst my heirs that located on section 22. It was used all to- may be living after his decease. gether as a farm with the buildings near the "To Elizabeth Beebe, wife of Hamaline southwest corner of the 80-acre description. Beebe, I do give and bequeath the sum of The above-described 99 acres of land situated ten dollars ($10) to be paid to her by the exon section 21 constituted the home farm of ecution of this my last will and testament as the testator, the house and buildings of such soon as convenient after my decease. farm being located upon the S. E. 14 of the "Lastly after the payment of all lawful S. E. 44 of said section. These lands on this demands against my estate at the time of my section were purchased by the testator in decease and the widow's right therein of my 1840 by deed, in which they were described personal estate, if any there be left, is to be as the "southeast quarter of the southeast equally divided between my two sons, Lafayquarter of section 21, and also the west half ette and Hamaline Beebe. And I do hereby of the southeast quarter of said section 21, nominate and appoint my wife, Mary Beebe, town 7 south, of range 13 west.” He later to be the executrix of this my last will and sold the N. 1 of the N. W. 14 of the S. E. testament, hereby revoking all former wills 14 of said section and one acre for cemetery by me made. purposes situated in the southeast corner of "In witness whereof I have hereunto set the S. E. 14 of the S. E. 14 of said section. my hand and seal this 31st day of July A. D. The will we are asked to construe reads 1876.

Abel Beebe. [Seal.)" as follows:

An attestation and publication clause is “In the name of God, Amen, I, Abel Beebe, added, signed by two witnesses. of the township of Porter, in the county of The files and records in this estate show Cass, and State of Michigan, of the age of that this will was admitted to probate June sixty-seven years and being of sound mind 15, 1881. The widow filed her bond as exand memory, do make, publish and declare ecutrix, qualified, and entered upon the duthis my last will and testament in manner ties of such oflice. Appraisers and commisfollowing, that is to say:

sioners on claims were appointed and made **First. After the payment of all just and and filed their reports. No other proceedlegal demands against my estate, I do give ings were ever had in said estate. The exand bequeath unto my wife, Mary Beebe, the ecutrix up to the date of her death never use of all my real estate so long as she re- filed any report, and was never discharged. maids my widow, together with the provi. After her death no proceedings were taken sions the law makes for her in my personal to close the estate. The son Lafayette was estate. To my daughter Sarah Ann Beards- a helpless cripple, who had always lived at ley, I give and bequeath the sum of six hun- his father's house, and, after the father's dred dollars ($600.00) over and above all sums death, continued to live there with his mothof money she has heretofore received out of er until his death. He was born in 1837 and my estate or any notes now held by my son, died in 1894. The son Hamaline was about Lafayette Beebe. The aforesaid sum of six three years younger than Lafayette, and is bundred dollars to be paid to my daughter, still living. He is mentally incompetent, and Sarah Ann Beardsley, by execution of this now represented by a guardian. He was permy last will and testament as soon as con- mitted to marry twice. One of his children Tenient after my decease.

was also an incompetent. The daughter "To my son Lafayette Beebe, I give and Sarah Ann Beardsley was the eldest child bequeath, after the decease of my wife Mary of the testator. She died in 1908, aged 74. Beebe, the following described real estate, The administrator of her estate is complainviz.: The south part of the west balf of the ant in this suit. During her lifetime the widBoutbeast quarter of section number twenty-ow lived upon the farm homestead, and unone also the west and north part of the der the will had and was possessed of a life south east quarter of section number twenty- estate in all of the real estate of the testaone, also the west half of the northwest quar-tor. Upon the death of Lafayette, who never ter of southeast quarter in section number married, his estate and interest in these twenty-two. All in township number seven lands under the will (subject to her life essouth of range number 13 west in the county tate) was inherited by his mother.

It apof Cass and State of Michigan.

pears froin the record that his estate was

determined. The mother and no other person had always been in possession of all testator's real estate after the testator's death, and so continued in possession until her death in 1898. In 1895 the widow, Mary Beebe, described as “sole heir at law of Lafayette Beebe, deceased,” “in consideration of the sum of one dollar, of love and affection, and for the purpose of making a division of the lands inherited from her son Lafayette,” undertook to convey to Sarah A. Beardsley and Hamaline Beebe “under certain conditions and limitations” the land which Complainant contends was devised by the testator to his son Lafayette. It purported to convey to Mrs. Beardsley the entire homestead farm and to Hamaline Beebe the 20 acres on section 22. This deed was made subject to many limitations and conditions on the part of Mrs. Beardsley. It was made while the aged grantor was sick in bed, and there is evidence tending to show that it was induced by undue influence. Hamaline at this time was under guardianship. Mrs. Beardsley died November 3, 1908, testate, and complainant administrator with the will annexed, claiming to have been licensed by the proper probate court to sell her real estate to pay debts ascertained that claim was made by Hamaline Beebe that he was the owner of an undivided one-half of the S. E. 14 of the S. E. 14 of section 21. He also ascertained what is claimed to be the faulty description in the will of this land in dispute. He then filed this bill to quiet title, and remove cloud therefrom, and to have this will construed. Hamaline Beebe was made sole defendant. He has by his guardian answered, traversing and denying the material allegations of the bill of complaint, and claiming fraud on the part of his deceased sister in getting possession of his property. Issue was joined, and the hearing of the case resulted in a decree for complainant. Defendant appeals. The contention of complainant is that the will in question devised the S. E. 14 of the S. E. 14 of section 21 to his son Lafayette. Defendant contends that this description was not included in the will. This is the only question in the case, and must be determined by a construction of the will to ascertain the intention of the testator in describing the devise to the son Lafayette. Testator owned two farms of 100 acres each (except one acre out of the corner of the homestead farm), and also personal estate of an amount not shown, but evidently in his opinion enough to warrant a provision for the equal division of a balance (after paying all lawful demands and $600 to his married daughter) between his two sons. He had formerly owned all the S. E. 14 of section 21, except the N. E. 14. He had sold the N. 14 of the N. W. 34 of this quarter section and also one acre out of the southeast corner of the S. E. 14 thereof. The following diagram shows all

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The devise in dispute reads: “To my son Lafayette Beebe I give and bequeath, after the death of my wife, Mary Beebe, the following described real estate, viz: the south part of the west half of the south east quarter of section number 21; Also the west and north part of the south east quarter of section Number 21; also the west half of the north west quarter of the south east quarter in section number twenty two.” Complainant's contention is that the clause of this devise, “Also the west and north part of the south east quarter of section number twenty one,” describes the remaining 39 acres of the S. E. 4 of the S. E. 4 of said section; in Other words, the homestead 40 on which the farm buildings were located. Defendant urges that this is a forced, and not a natural, Construction; that taking this devise as a whole, and applying it to the land testator owned on that quarter section, a reasonable construction would be that the testator intended “the south part of the west half of the south east quarter of section number twenty one” to describe the south 40 acres of the said W. 4%; that the next clause, “Also the west and north part of the south east quarter of section twenty one,” was intended to describe the South 20 acres he owned in the N. W. 4 of such quarter section; that it is the only west and north part of that quarter section he owned at the time, and cannot

S. E. 44 (less the one acre); that to give such divided equally between them. He provided construction would require a substitution by that they should take certain real estate after construction of words he did not use in his the life estate of the widow ceased. It is description of this land, and with meaning reasonable to suppose that equal provision directly opposite to those used by the tes- was intended to be made for them out of tator.

such real estate. Complainant also urges that the practical [3] The construction defendant contends construction given by the parties and their for would make such equal provision, and in acquiescence therein for many years should our opinion is the proper and reasonable conbe considered as of great weight, and insists struction which should be given to this that the son Lafayette at once went into pos- clause of the will. He gave 80 acres of land session of the 99-acre farm, and so continued of practically equal value to each son.

His during the remainder of his life without pro- will did not dispose of the 39 acres of the test or disturbance. This claim is not found- homestead farm upon which the buildings ed in law or in fact. The widow during his were located. entire life, after the death of testator, was [4] While it is presumed that a testator bę right under the will entitled to the absu- did not intend to die intestate as to any of lute possession of all the real estate to the his estate, and if a will is susceptible of two exclusion of every other person, and, in fact, constructions the courts will prefer the conmaintained such actual possession. The son struction by which the whole estate is disLafayette made his home with her during posed of, yet such construction must be reahis entire life. No estate in possession of sonable and consistent with the general scope this land by the terms of the will could and provisions of the will and with a fair come to him as a remainderman during the construction of its terms. To follow this continuance of the mother's life estate. The presumption of intention in the instant case incompetency of the other son, Hamaline, for would be contrary to the intention we find bids any construction by acquiescence on his expressed by the testator, which is never part. His incapacity is not disputed. It permissible. was recognized by complainant's decedent, Our construction is, therefore, that Abel Mrs. Beardsley, and the widow in the deed Beebe, as to the remainder over after the exunder which she claims title which is the piration of the life estate of his wife in the lasis of this suit, and the record shows that S. E. 44 of the S. E. 44 of section 21, died the first guardian of Hamaline Beebe never intestate, and said land descended to his read the will or knew its contents, except heirs at law; defendant taking one-third and from hearsay, and during the 13 years he upon the death of the mother (who inherited acted obtained no other information, or made one-third from Lafayette) one-sixth making any attempt to ascertain his ward's rights one-half of said description, and complain. in the premises. There is evidence in the ant's decedent, Mrs. Beardsley, taking in the case tending to show that the testator some same manner the other half. Complainant, years before he made his will expressed an therefore, was not entitled to the relief prayintention of giving the homestead farm to ed for and granted. Lafayette and the other farm to Hamaline The decree of the circuit court is reversed and also of statements made by the widow, and set aside, and a decree will be entered Lafayette, and perhaps Hamaline that such according to this opinion, with costs of both was the disposition made by the will. The courts to defendant. latter is of no force at all because of Hamaline's incompetency and the former fails, because in making the will the testator, even under the construction claimed by complain McCAULEY V. DETROIT UNITED RY. ant, took part of the other farm from Hama-(Supreme Court of Michigan. Nov. 3. 1911.) line and gave it to Lafayette. (1) No assistance appears to be given to us


EFFECT OF ACCIDENT-Cost OF CURE-PEin this construction outside of the instrument CUNIARY Loss TO OTHERS. itself.

Where plaintiff, a married woman, was in[2] There is one feature of this instrument jured, she could show the seriousness of the to be considered and which should material injury and the probable cost of an operation

necessary to effect a cure, and, after defendly aid in this construction. If this will in-ant had shown that the proper time for such dicates a general intention or plan on the operation was immediately after the accident, part of the testator as to the provisions he could also show that neither plaintiff nor her

husband had the means to pay for such operaintended to make for his unfortunate sons, tion, but evidence that at the time the husthe fair and reasonable construction which band was conducting a store and that it went would accord with such intention should be bankrupt because of the loss of her services as followed. It is apparent that they were

manager was inadmissible, being unnecessary

to explain unfavorable inferences to be drawn Equally entitled to his sympathy and his from her failure to be operated on. bounty. From the will it appears that the [Ed. Note.-For other cases, see Damages, residue of all his personal estate was to be. Dec. Dig. $ 165.*]

2. HUSBAND AND WIFE (§ 209*)—INJURIES To WIFE—Loss OF SERVICE. A husband may recover for loss of the services of his wife due to an injury only in a suit instituted by him. [Ed. Note—For other cases,...see . Husband and Wife, Cent. Dig. §§ 766–773; Dec. Dig. § 209.*]

Error to Circuit Court, Wayne County; George S. Hosmer, Judge.

Action by Catherine McCauley against the Detroit United Railway. Judgment for plaintiff, and defendant brings error. Reversed, and new trial granted.


Corliss, Leete & Joslyn (William G. Fitzpatrick of counsel), for appellant. Wm. H. Turner, for appellee.

BIRD, J. Plaintiff recovered a judgment in the Wayne circuit court against the Detroit United Railway for personal injuries which she claims to have received while attempting to alight from one of its cars in the city of Detroit. The defendant asks for a renewal of the judgment on several grounds, chief of which is that the trial court erred in the admission of testimony.

While plaintiff was on the witness stand, her counsel developed that she was a married woman, residing with her husband at Merrill, in this state; that on the day of the accident she was in Detroit on business, and while in the act of alighting from one of the defendant's Jefferson avenue cars she was thrown to the pavement by the sudden starting of the car, and seriously injured; that the most serious injury which she suffered was a retroversion of the uterus. Following this, plaintiff's counsel showed by Dr. Kennedy that the injury was a serious one. Upon cross-examination Dr. Kennedy testified that, while the injury was a serious one, it could probably be cured by a surgical operation, and that the proper time for such an operation was within a reasonably short time after the injury, and he further gave it as his opinion that much of the pain and suffering which plaintiff had endured since the accident might have been averted by a prompt surgical operation. Plaintiff then showed by the doctor that such a surgical operation would cost from $500 to $1,000. Subsequently plaintiff was recalled to the stand, and testified that neither she nor her husband had the means with which to procure such an operation as Dr. Kennedy advised. She further testified that her husband, prior to her injury, was conducting a store, and that she was the chief manager of the business, and as a consequence of her injury she was taken away from it and it went bankrupt. This testimony of the plaintiff is complained of as

error. Counsel argues that it was prejudicial to his case, and was a temptation to the jury to make good the business losses of plaintiff's husband. Plaintiff's counsel argues in justification of its admission on the ground that defendant developed the testimony to the point where he could argue to the jury that, had plaintiff submitted to an operation promptly, her suffering would have been very much lessened. [1] We are of the opinion that it was competent for plaintiff to show the seriousness of the injury and what the probable cost would be to effect a cure, and, after defendant had shown that the proper time for an operation was immediately following the accident, we think it was proper for plaintiff to show that neither she nor her husband had the means to pay for such an operation. But we are inclined to agree with defendant's counsel that when she went further and testified that her husband was engaged in conducting a store, and that it went bankrupt by reason of the loss of her services and attention, that she went further than was proper, and further than was necessary to explain any unfavorable inferences which might have been drawn by defendant's counsel from her failure to be operated upon promptly. Evidence of what her husband had lost on account of her injury would be more misleading than helpful to a jury, in determining what loss she had sustained. [2] Her husband was entitled to her Services, and, if he lost them through the wrongful act of defendant, they could be recovered for only in a suit instituted by him. We think the testimony was incompetent, and that the effect of it was to augment the damages allowed her by the jury. There are other assignments of error, but they are of such a character that they will not likely arise upon a new trial. Therefore they will not be considered. For the error pointed out, the judgment will be reversed, and a new trial granted.

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2. TAxATION ($ 704*)—TAx SALEs—NOTICE BY PURCHASER—REQUISITES. Notices to record owners by a tax title purchaser are insufficient if they fail to name the state, county, or township in which the lands are situated, and fail to state the amount paid for each parcel described and assessed separately. [Ed. Note.—For other cases, see Taxation, Cent. Dig. §§ 1418–1423; Dec. Dig. $ 704.”] Error to Circuit Court, Ogemaw County; Nelson Sharpe, Judge. Action by John McRae and others against William Barber and others. Judgment for defendants, and plaintiffs bring error. Reversed, and new trial ordered. Argued before OSTRANDER, C. J., and BIRD, MOORE, McALWAY. BROOKE, BLAIR, STONE, and STEERE, JJ.

William T. Yeo, for appellants. Bennett & Moore and Foster L. Snodgrass, for appellees.

McALWAY, J. Plaintiffs have brought this case to this court upon a writ of error from a judgment entered upon a directed verdict against them, in an action of ejectment. A full statement of the titles to the lands involved in this suit claimed by the respective parties thereto would be of too great length, and not necessary to the consideration of the case. Plaintiffs claim to be the owners in fee through the original chain of title. Defendants Barber and wife claim by virtue of certain state tax deeds, under which they claim to have gone into possession. We may consider, for the purposes of this case, that plaintiffs made proof, prima facie, of ownership under the original title. This is in effect the view of the trial court in determining the case, holding the title of defendants good under at least one tax deed, and directing a verdict for them. The plaintiffs were not attacking the validity of all of defendants' titles, but contended that before defendants were entitled to enter into and hold possession of said lands, even if any or all of the tax titles were valid, notice was required to be given as provided by Act No. 229, P. A. of 1897; the purchases of the state tax bids having been made, and the deeds to defendants' grantors having been executed, subsequent to the going into effect of said act, and said deeds each containing the proviso “that this indenture is subject to the relevant conditions imposed by Act No. 229 of the Public Acts of 1897.” One of the deeds from the state, under which defendant claimed title and right of possession, was for the taxes of 1882, 1883, 1884, and 1885, and the court held that the deed was valid as to the taxes of 1885, in his charge to the jury saying: “The question is as to whether or not the first of those deeds for taxes which ripened into title in

the state under the old law is applicable to the provisions of that law which required the giving of notice.” Relying upon the case of Briggs v. Gulich, 143 Mich. 457, 107 N. W. 269, the trial court held that notices under the act invoked by plaintiffs were not required. The principal assignment of error is based upon such holding. [1] An examination of the opinions in Briggs v. Gulich, supra, shows that plaintiff in ejectment sought to recover possession of lands to which he claimed title by virtue of a certain tax deed upon a sale made in October, 1887, for taxes assessed for the year 1885. There having been no redemption of the land, it was placed upon the state tax list, October 1, 1888, where it remained without having been offered for sale until April 14, 1903, when it was sold, and a state tax deed was issued May 2, 1903. The validity of this tax title was questioned by defendant, on the ground that the tax was illegal. Plaintiff insisted that, having given the requisite six months notice, and no suit having been begun within the time limited, defendants were “barred from questioning the validity of the tax title or tax deed.” Defendant did not question that the notice had been given, but insisted that he had never had his day in court; and as to sales made under the old system, before the adoption of the present system of foreclosure of tax liens in courts of chancery, the limitation of the right of action created by the notice under the present system did not apply. This was the only question decided in the case, as to the application of the present tax law or its construction, and upon this proposition both opinions in the case state that the requirements of the present law relative to notice and limitation of the right of action did not apply. The word “notice” was used because it is the necessary step to be taken in order to start the running of the statute of limitations, and is therefore inseparable from it. This court, in Sanborn v. Alston, 153 Mich. 456, 116 N. W. 1099, did not discredit or overrule Briggs v. Gulich, supra. The question decided in the later case was that the notice provided by Act No. 229, Pub. Acts 1897, as amended, requiring tax purchasers to give the record owners the prescribed notice, and allowing the owners six months after such notice to obtain a reconveyance upon the specified conditions, applies as well to lands which before the passage of the act has been bid in to the state, and to which the state as the law then stood had an indefeasible title, as to lands subsequently bid in. The court in so holding used the following language: “The title to many thousands of acres of land was in the state at the time the act of 1897 was passed. The title to many other thousands has since been acquired by the state. We

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