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S. E. 4 (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 construction given by the parties and their acquiescence therein for many years should be considered as of great weight, and insists that the son Lafayette at once went into possession of the 99-acre farm, and so continued during the remainder of his life without protest or disturbance. This claim is not founded in law or in fact. The widow during his entire life, after the death of testator, was by right under the will entitled to the absolute possession of all the real estate to the exclusion of every other person, and, in fact, maintained such actual possession. The son Lafayette made his home with her during his entire life. No estate in possession of this land by the terms of the will could come to him as a remainderman during the continuance of the mother's life estate. The incompetency of the other son, Hamaline, forbids any construction by acquiescence on his part. His incapacity is not disputed. It was recognized by complainant's decedent, Mrs. Beardsley, and the widow in the deed under which she claims title which is the basis of this suit, and the record shows that the first guardian of Hamaline Beebe never read the will or knew its contents, except from hearsay, and during the 13 years he acted obtained no other information, or made any attempt to ascertain his ward's rights in the premises. There is evidence in the case tending to show that the testator some years before he made his will expressed an intention of giving the homestead farm to Lafayette and the other farm to Hamaline and also of statements made by the widow, Lafayette, and perhaps Hamaline that such was the disposition made by the will. The 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 complainant, took part of the other farm from Hamaline and gave it to Lafayette.

[1] No assistance appears to be given to us in this construction outside of the instrument itself.

[2] There is one feature of this instrument to be considered and which should materially aid in this construction. If this will indicates a general intention or plan on the part of the testator as to the provisions he intended to make for his unfortunate sons, the fair and reasonable construction which would accord with such intention should be followed.

[3] The construction defendant contends for would make such equal provision, and in our opinion is the proper and reasonable construction which should be given to this clause of the will. He gave 80 acres of land of practically equal value to each son. His will did not dispose of the 39 acres of the homestead farm upon which the buildings were located.

[4] While it is presumed that a testator did not intend to die intestate as to any of his estate, and if a will is susceptible of two constructions the courts will prefer the construction by which the whole estate is disposed of, yet such construction must be reasonable and consistent with the general scope and provisions of the will and with a fair construction of its terms. To follow this presumption of intention in the instant case would be contrary to the intention we find expressed by the testator, which is never permissible.

Our construction is, therefore, that Abel Beebe, as to the remainder over after the expiration of the life estate of his wife in the S. E. 4 of the S. E. 4 of section 21, died intestate, and said land descended to his heirs at law; defendant taking one-third and upon the death of the mother (who inherited one-third from Lafayette) one-sixth making one-half of said description, and complainant's decedent, Mrs. Beardsley, taking in the same manner the other half. Complainant, therefore, was not entitled to the relief prayed for and granted.

The decree of the circuit court is reversed and set aside, and a decree will be entered according to this opinion, with costs of both courts to defendant.

MCCAULEY v. DETROIT UNITED RY. (Supreme Court of Michigan. Nov. 3. 1911.) 1. DAMAGES (§ 168*)-PERSONAL INJURIES— EFFECT OF ACCIDENT-COST OF CURE-PECUNIARY LOSS TO OTHERS.

Where plaintiff, a married woman, was injured, she could show the seriousness of the injury and the probable cost of an operation necessary to effect a cure, and, after defendant had shown that the proper time for such operation was immediately after the accident, could also show that neither plaintiff nor her husband had the means to pay for such operation, but evidence that at the time the husband was conducting a store and that it went bankrupt because of the loss of her services as

was inadmissible, being unnecessary to explain unfavorable inferences to be drawn from her failure to be operated on.

manager It is apparent that they were equally entitled to his sympathy and his bounty. From the will it appears that the residue of all his personal estate was to be

[Ed. Note. For other cases, see Damages, Dec. Dig. § 168.*]

2. HUSBAND AND WIFE (§ 209*)—INJURIES TO | error. Counsel argues that it was prejudiWIFE-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. 88 766-773; 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.

Argued before OSTRANDER, C. J., and BIRD, MOORE, MCALVAY, BROOKE, BLAIR, STONE, and STEERE, JJ.

cial 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 ac

to show that neither she nor her husband

Corliss, Leete & Joslyn (William G. Fitz-cident, we think it was proper for plaintiff patrick of counsel), for appellant. Wm. H. had the means to pay for such an operation. 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 mar

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.

ried 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 Upon cross-examination Dr. Kennedy testified that, while the injury was a serious For the error pointed out, the judgment one, it could probably be cured by a sur-will be reversed, and a new trial granted. gical operation, and that the proper time for such an operation was within a reason

one.

ably 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 conse quence of her injury she was taken away from it and it went bankrupt. This testimony of the plaintiff is complained of as

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.

JJ., concurred with BIRD, J. OSTRANDER, MOORE, BLAIR, STONE, and STEERE, c. J., and MCALVAY and BROOKE, JJ., concurred in the result.

MCRAE et al. v. BARBER et al.

(Supreme Court of Michigan.

Nov. 3, 1911.) 1. TAXATION (§ 701*)-TAX SALES-POSSESSION BY PURCHASER-NOTICE-NECESSITY. The notice required by Pub. Acts 1897, No. 229, to be given record owners by a tax title purchaser before being entitled to possession, applies to purchases of state tax bids, made after the act took effect, though the state acquired title before that time.

[Ed. Note. For other cases, see Taxation, Dec. Dig. § 701.*]

2. TAXATION (§ 704*)-TAX SALES-NOTICE BY | the state under the old law is applicable to PURCHASER-REQUISITES. the provisions of that law which required the giving of notice."

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. 88 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, MCALVAY,
BLAIR, STONE, and STEERE, JJ.

BROOKE,

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

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 Oc

tober, 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 defendMCALVAY, J. Plaintiffs have brought ant, on the ground that the tax was illegal. this case to this court upon a writ of error Plaintiff insisted that, having given the from a judgment entered upon a directed requisite six months notice, and no suit havverdict against them, in an action of ejecting been begun within the time limited, dement. fendants were "barred from questioning the validity of the tax title or tax deed." fendant 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.

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

De

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

think it was clearly the intention of the Legislature to give to all the original owners of land the right conferred by the act of 1897, viz., to obtain a reconveyance of their land thereafter purchased, whether from the state directly or at tax sales, by paying the tax title purchasers the amounts provided by law. Such, we think, has been the understanding of the profession. Many cases have been before the courts where the title has been acquired from the state in the same manner as that acquired by the defendant Alston, and no question has before been raised as to the right to the benefit of the act." The original record and briefs in that case show that the attention of this court

was called to the case of Briggs v. Gulich,

supra.

[2] The trial court was in error in holding that a notice by the tax title purchaser, as required by the present tax law, was not necessary to be given in the instant case, and in directing a verdict for defendant. As the court cannot finally dispose of the case, for the reason that the record is not sufficiently clear to inform the court of all the necessary facts, other questions presented will not be considered, except to say that the notices required by the tax law, which were claimed to have been served upon some of the plaintiffs, did not conform with the statutory requirements, in that they did not give the state, county, or township in which the lands were situated. Tucker v. Van Winkle, 142 Mich. 210, 105 N. W. 607; Sanborn v. Alston, supra. Nor did they give to each parcel of land described and assessed separately the amount paid for each description. Jackson v. Mason, 143 Mich. 355, 106 N. W. 1112. It was error for the court to admit these notices in evidence over the objections of plaintiff.

For the errors pointed out, the judgment is reversed, and a new trial ordered.

ANDERSON et al. v. HENDERSON. (Supreme Court of Michigan. Nov. 3, 1911.) 1. APPEAL AND ERROR (§ 1024*)-REVIEWFINDINGS OF FACT-MOTION TO VACATE JUDGMENT.

The finding of the trial court upon motion to set aside a judgment that the defendant was estopped to deny his liability upon a surety bond, being supported by affidavits, is not subject to review upon error.

[Ed. Note. For other cases, see Appeal and Error, Dec. Dig. § 1024.*] 2. REPLEVIN (§ 103*)-LIABILITY OF PLAINTIFF-ENFORCEMENT IN REPLEVIN PROCEED

INGS.

Pub. Acts 1899, No. 246, amending section 34 of Rev. St. 1846, c. 124 (Comp. Laws, § 10.680), provides that whenever the defendant shall be entitled to a return of property replevied he may take judgment for the value of the property, subject to the provisions of section 29 (section 10,675), and in such case he shall be entitled to a judgment against the sure

ties in the bond given by the replevying party. Section 29 provides that when either party to that fact may be proved on the trial, or on the an action of replevin shall have only a lien assessment of value or damages. Comp. Laws, $ 10,681 (section 35 of the same chapter), provides that whenever any damages shall be assessed the same notice shall be given the adverse party as is required by law in similar personal actions; and section 10,673 provides that after issue joined in replevin either party may give notice of trial, and if neither shall have noticed the cause for trial the defendant may move for judgment of nonsuit. Held that, where plaintiff in replevin made default after the case had been duly noticed for trial, the defendant was not only entitled to have the plaintiff nonsuited, but might at that time take judgment for damages arising from the replevin. [Ed. Note.-For other cases, see Replevin, Cent. Dig. §§ 398-411; Dec. Dig. § 103.*] 3. APPEAL AND ERROR (§ 761*)—BRIEFS-FAILURE TO SET OUT POINTS IN ARGUMENT.

Where an appealing party assigns as error the unconstitutionality of a statute, and by suggestion, rather than discussion, urges in his brief that such statute works a deprivation of late court will not seek for the infirmity in property without due process of law, the appelthe statute.

[Ed. Note.-For other cases, see Appeal and Error, Cent. Dig. § 3096; Dec. Dig. § 761.*]

Error to Circuit Court, Lapeer County; George W. Smith, Judge.

Replevin by Charles H. Anderson against David Henderson. There was judgment for plaintiff in the Justice's Court, and defendant appealed to the Circuit Court, where judgment was for defendant against plaintiff and his surety, Orin Travis, and the latter brings error. Affirmed.

Argued before OSTRANDER, C. J., and BIRD, MOORE, BLAIR, and STONE, JJ. William E. Brown, for appellant. H. W. Smith, for appellee.

OSTRANDER, C. J. In an action of replevin, in justice's court, a judgment was rendered in favor of the plaintiff. The defendant appealed to the circuit court, in which court, the cause being regularly upon the calendar for trial, and the plaintiff not appearing, he was called in open court, and still not appearing was nonsuited, and, the defendant claiming a lien on the property described in the writ of replevin taken on the writ and delivered to the plaintiff, a jury was then and there impaneled, a verdict was returned in favor of the defendant for his special lien and interest in said property, and a judgment was entered on the verdict for said defendant against the plaintiff and the surety who signed the replevin bond in justice's court. Afterwards the surety moved to set aside the judgment, assigning as reasons that (1) no notice was served upon him that the cause was pending, or that a judgment would be taken against him upon default of the plaintiff; (2) the surety did not execute the bond, and was not liable thereon; (3) the act au

thorizing the taking of the judgment against | upon the execution of a bond running to said surety without notice to him was un- the officer.

constitutional and void. In support of the Before the amendment of 1899. section 34 motion, various affidavits were presented. of the act (Rev. St. 1846, c. 124; 3 Comp. Counter affidavits were filed. The motion Laws, § 10,680) read as follows: "Whenever was denied. The said surety reviews the action of the trial court upon writ of error. Various errors are assigned, questioning the conclusion of the court upon the facts; one upon the refusal to hold that the act authorizing the taking of judgment against the surety without notice to him was unconstitutional, and one upon the refusal of the court to set aside the judgment and grant the surety a new trial to determine his liability upon the bond.

[1] It is the claim of the appellant that after signing the bond in the replevin suit a writ of replevin was issued and returned without service; that thereafter a new affidavit was made and a new writ issued, the old bond being amended by inserting new dates therein; and that he was not consulted and did not consent to such use of the bond signed by him, nor to become surety in the suit last begun. It is his further claim that if proper practice had been pursued in the circuit court-that is to say, if he had been notified that a judgment was to be taken against him-he could in that court and proceeding have made the defense asserted. The court below was unable to find, and so stated, whether appellant did or did not consent to the use of the old bond in the new suit, and did find that appellant knew, before the cause was determined in justice's court, and after judgment was rendered therein, that the cause was proceeding in reliance upon the bond thus filed; that he was estopped to now assert nonliability upon the bond. The conclusion was supported by the affidavits, and we find nothing in it subject to review on error.

the defendant shall be entitled to a return of the property replevied, instead of taking judgment for such return, as above provided, he may take judgment for the value of the property replevied, in which case such value shall be assessed on the trial, or upon the assessment of damages, as the case may be, subject to the provisions of section twenty-nine of this chapter." The Legislature added the following: "And in such case he shall be entitled to a judgment against the sureties in the bond given by the opposite party, on the delivery of the property to him by the officer, as well as against the principal. When judgment shall be rendered against a party and his sureties, pursuant to the provisions of this section, any execution issued thereon shall direct the officer to whom it is directed to make the amount thereof out of the goods, chattels, lands and tenements of the principal, naming him, and for want thereof, out of the goods, chattels, lands and tenements of the sureties."

This section was and is relied upon to sustain the judgment. The section 29 referred to in said section 34, is the section (Comp. Laws, § 10,675) which provides that: "When either of the parties to an action of replevin, at the time of the commencement of the suit, shall have only a lien upon the goods and chattels described in the writ, and is not the general owner thereof, that fact may be proved on the trial, or on the assessment of value, or on the assessment of damages, in all cases arising under this chapter; and the finding of the jury, or court, as the case may be, shall be according to such fact, and the court shall thereupon render such judgment as shall be just between the parties."

[2] Is the judgment liable to be set aside because irregularly entered, or because of want of jurisdiction to render it? PreviWe do not understand that it is claimed ous to 1899, the statute did not provide for that this provision for determining and giventering a judgment in replevin against any one, except the plaintiff or the defendant.ing judgment for a lien or special interest in the goods seized is not applicable to jusThere was no provision for rendering a tices' courts, or to the determination of causjudgment against the surety in the replev-es heard on appeal from justices' courts. It in bond in any case. In 1899 (Act 246, is not claimed, either, that section 34 of the Public Acts of 1899) considerable amend- act (section 10,680) does not in terms permit ments were made to the statute, relating a judgment for the amount of the special to replevin proceedings in circuit courts. lien to be entered against the surety in the Among others is a provision for returning replevin bond. We therefore give no attenproperty taken on the writ to the custody tion to either of these propositions. It is of the defendant, and one permitting either claimed that because plaintiff became nonparty, before the delivery of the property suit no determination of the amount of the by the officer to the opposite party, to claim lien could be made without some further and to secure a determination of his claim, notice; that only a judgment of nonsuit could that the property replevined had a special be entered, and thereafter a 14-day notice to value to him which could not be satisfied in plaintiff of assessment of damages was remoney, for which reason he ought not to quired. This claim is predicated of the probe deprived of its custody. The sheriff, hav- visions of 3 Comp. Laws, § 10,681, which ing seized the property, could surrender its reads: "Whenever any damages shall be as

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