build was made, and through him became the property of a railway company in which he was a principal stockholder. This company refused to fulfill the agreement for transportation, and the loggers sued out a preliminary injunction restraining it from running over so much of the road as they had built, except on condition of carrying their lumber at the rates agreed on. Held that the agree ment was no more than an ordinary executory contract, was not enforcible in equity, and gave complainants no more control than other contractors over the road-bed; that the preliminary injunetion was a final order and void, and that mandamus would lie to set it aside. Tawas etc. R. R. Co. v. Circuit Judge, 479. 21. A man gave a general power of attorney to carry on his business, sell and dispose of any of his real estate and collect dues. During his absence from the State, the agent closed up his business, obtained execution titles to part of his real estate and made con-iderable collections. The principal returned and went into the army, and while home on furlough was induced to give his agent a deed of lands. After his return from the war, being unable to obtain any accounts from the agent, he sued him for what remained due him and for the value of the lands conveyed, but having become broken down in mind and body and being declared incompetent. and put under guardianship, proceedings in equity were afterwards resorted to for setting aside the deed. Held that the grantee had the burden of proving implicit good faith and a perfect understanding and agreement on the grantor's part. But as the graator had not moved seasonably to repudiate his deed, and as his action at law affirmed the sale but treated it as one where no value was fixed, and as he had since died and the precise facts could not be reached, the sale was sustained and the grantor's estate decreed to be entitled to the full value of the land at the date of its conveyance; and pending an accounting the property was to be subject to a lien for the balance due and the grantee restrained meanwhile from disposing of it until the final decree. Rath v. Vanderlyn, 597.

22. A deed from a father to his minor son was left unrecorded for some months, but was finally taken by the son from a trunk where it was kept, and recorded. Afterwards the father conveyed a tract including the parcel covered by the son's deed, to another person who had notice of the prior conveyance within three years afterwards, but beyond beginning an action of ejectment five years later, and suffering nonsuit, took no steps to clear his title until twenty-four years had gone by from the date of his own deed, and the prior grantor had died. He then entered the land and being sued in trespass filed a bill to enjoin the action and to clear his title. Held that the bill was properly dismissed. It was not likely that the son would have fraudulently recorded his deed, as the wrong could be easily found out, nor that the other grantee would have neglected when the facts were recent to seek a remedy if he was entitled to it. The latter's long unexplained delay and acquiescence would have cut off any equities he may have had, so that both at law and in equity he would have had no claim for redress. Birdsall c. Johnson, 134.

23. A court is not bound by the opinion of the counsel concerning the theory of a bill for relief, but whatever the purpose of its allega tions, is governed by the case actually made by the bill. Geney . Maynard, 578.

24. A bill which is so framed as to call for redemption and the setting aside of interfering obstructions, on equitable grounds, even though it contains allegations appropriate to a statutory proceeding to quiet title, presents a case which falls under the inherent jurisdiction of the court of chancery and needs no statutory aid. Id.

25. Occupancy of rooms in a building containing several separate leaseholds is not to be assumed to be the "actual possession" required in one who seeks to quiet title to the premises, in the absence of a showing that he does not hold under defendants; and if he does not, he is in a situation to bring ejectment for the holdings occupied by others than himself. Id.

26. A bill for partition averred that the land was devised to eleven heirs who were named; that seven had assigned to defendant, who holds seven-elevenths of the property, and that complainants, who represent four of the heirs, claim the rest. Held that it sufficiently averred defendant's interest and would be good for a union of fourelevenths in complainants, if it did not, indeed, show that each held one-eleventh. Eberts v. Fisher, 551.

27. The holder of an inchoate lien for paving taxes, in the shape of a redeemable lease, need not, under Comp. L. § 6274, be made a party defendant to a bill for the partition of the property; it is proper, however, to make him so, and in case of non-redemption the lien may be made chargeable on the defendants, as the final form of relief may make suitable. Id.

28. "An estate in possession" within the meaning of the statute for partition (Comp. L. § 6268) means merely an estate in present enjoyment, whether occupied by defendant's tenants or entirely unoccupied. Id.

29. Where a tenant in common of land in partition is also a lessee of the land, it saves circuity of action to consider all of his claims together; but the jurisdiction does not depend on so doing. Id. 30. Allegations in a bill for partition, as to the rights and obligations of tenants of the defendant, could only be a ground of demurrer by the tenants themselves; and being only collateral to the regular issues in partition, there is no legal objection to averring or estab lishing any facts that would determine the relative interests of all parties. Any facts bearing upon the termination of the lease by forfeiture or otherwise are pertinent as the object of the bill is not properly to enforce a forfeiture, but to determine the right to a partition and the extent of the property to be partitioned. Id. 31. There is no rule that equity will not recognize a forfeiture when it is only one of the incidents of a past transaction. Id. 32. Where defendants in partition desire to rely on a lease made by them they must include such averments in their answers as will enable them to maintain their interests, so that, whether the land is partitioned or sold, equities may be adjusted in it or in its proceeds. Id. 33. Courts of equity cannot appoint receivers except when such appointment is allowed by law (Comp. L. § 5070) and there is no statute authorizing them to make ex parte orders appointing a receiver to take possession of real estate under foreclosure, even though the parties themselves agree thereto by the terms of the mortgage. Hazeltine v. Granger, 503.

34. A right of action for fraud is not assignable and equity will not permit one to buy up stale claims and then seek to establish frauds committed against his assignors. Dickinson v. Seaver, 624.

35. Any decree or order divesting possession or rights on a preliminary inquiry is illegal and void; and when made in equity is a final order and appealable, though an appeal is not necessary to rescind it. Tawas etc. R. R. Co. v. Losco Circuit Judge, 479.

36. Where proofs were taken in open court, an extension of time for filing a case on appeal can be applied for after sixty days from the date of the decree, and may be granted if the time allowed does not exceed the statutory period of three months. Tilden v. Wayne Circ. Judge, 515.

37. On an appeal in chancery the appellate court may examine the exceptions of the party who did not appeal. Lambert o. Griffith, 65. 38. Where a decree construing a will was found to be incorrect, and valid objections to the jurisdiction were made, the Supreme Court on appeal reversed the decree and dismissed the bill with costs of both courts to defendants. Hogan v. Hogan, 147.

39. On an appeal from a decree dismissing a judgment creditor's bill, the Supreme Court can determine the claims of a person impleaded as holding securities belonging to a principal defendant, but claiming them in complainant's interest and against the owner's will and with no lien upon them. Brown v. Vandermeulen, 522.

accounting by surviving partners: ACCOUNTING, 1, 2.

allegation of ownership in bill for INJUNCTION, 1.

allegations on hearing not noticed: PRACTICE, 12.

complainant's fraud on State not a defense: STATE LANDS, 1.

defendants to foreclosure of MORTGAGE OF LANDS, 14.

enforces grantee's liability to pay debt: MORTGAGE OF LANDS, 12. enforcing rights of constructive parties to CONTRACTS, 1. enforcement of parol LAND CONTRACTS, 6.

....

equitable defenses excluded in EJECTMENT, 4, 5; LAND CONTRACTS, 4 foreclosure bill dismissed for want of: MORtgage of Chattels, 3. injunction bond valid though bill dismissed: INJUNCTION, 2. jurisdiction in probate matters: ESTATES OF DECEDENTS, 8-11. jurisdiction to protect sureties; SURETYSHIP, 1.

notice of equities affecting NEGOTIABLE INSTRUMENTS, 4.

power to remove building: INJUNCTION, 1.

requiring compound interest: LAND CONTRACTS, 5.

review of objections on appeal in ACCOUNTING, 3, 4.

time to foreclose for interest in arrears: MORTGAGE OF LANDS, 15. upon parol trusts in lands: REAL PROPERTY, 6, 7.

will not enforce inequitable provisions in MORTGAGE OF LANDS, 10. of redemption, not to be destroyed in advance: MORTGAGE OF LANDS, 10.

ERROR.

1. Error does not lie on the affirmance by the circuit court of a com missioner's order dissolving an attachment; the order only deter mines the right to the lien, and a writ of error based upon it would not affect the judgment actually given on the merits. Gray e. York, 415.

2. Where evidence improperly admitted is evidently not considered by the jury, the error does not require a reversal of judgment. Drysdall v. Smith, 119.

3. It cannot be assumed on error that the jury disregarded the proofs and acted on something else. Wilcox v. Laflin & Rand Poeder Co.,

35.

does not lie on judgment upon award: ARBITRATION AND Award, 2. instruction as to requisites of possession: ADVERSE POSSESSION, 2. refusal to charge on points covered: TRIAL, 8.

affidavits, when not regarded on: PRACTICE, 13.

order of proof not reviewable: TRIAL, 1, 2. proper judgment on, after CERTIORARI, 5.

must be clear and prejudicial: CRIMINAL LAW, 4.

ERRORS OF DESCRIPTION

not affecting rights conferred by Land Contracts, 2.

"ESTATE IN POSSESSION."

in meaning of statute for partition: EQUITY, 28.

ESTATES OF DECEDENTS: Statute of descents, 1; Devisee's estate, 2; Heir's right to emblements, 3, 4; Jurisdiction, 5-11; Creditors,

Estates of Decedents. INDEX. Estates of Decedents. 681

10-15; Administrator's liability for claims, 16–20; Examination of executor, 21; Residuary Legatee, 22, 23; Costs, 24.

1. The Michigan statute of descents applies only to property which is not devised. Richards v. Pierce, 444.

2. A devisee may take his estate as of the death of the testator, except so far as otherwise provided by statute. Id. 3. Under Act 138 of 1877 an intestate's estate is subject to sale for his debts for six years after his death, but except for this and for the jurisdiction of equity to restrain waste, the heir's right of enjoy ment during that time is absolute. Held, that an heir who had sown a portion of the estate before a probate order for its sale was asked for, was entitled after the sale to cut and carry the crop away, and could maintain trespass against the purchaser and the administrator for interfering with his right of possession. McDaniels v. Walker, 83.

4. Wherever the law gives a right it gives the means necessary to its beneficial enjoyment. Id.

5. A decree by a federal court cannot affect strangers to the record, or interfere with the regular probate of an estate in a state court which has jurisdiction. Dickinson v. Seaver, 624.

6. Under the probate system of Michigan, estates must be settled and claims proved in the probate court. Whatever may be done with the final balance where a will has been previously probated at a foreign domicile, the estate must be administered under the probate laws of the state to the time of distribution. Id.

7. No administration of an estate is extra-territorial, and no foreign proof can be enforced without re-allowance; a foreign judgment may have great force or even be conclusive as evidence, but it cannot be enforced as a judgment outside of the jurisdiction in which it is given, without being established in new legal proceedings. Id.

8. The probate court is the only court that has any such jurisdiction in rem as will enable it to reach persons out of the state, or call in all creditors; the circuit court has no power in equity to act as a substitute for the probate court in this way, and unless it has authority to deal with a case through the parties actually before it, cannot deal at all with it. Id.

9. A court of equity cannot examine into the question of the rights of an estate against the widow or of her claims against the estate. where it has already been passed upon by commissioners on the estate and is still in litigation on an appeal. Shelden v. Walbridge,

251.

10. The creditors of an estate have a legal remedy, as for money had and received, against the widow on claims held by the estate against her, or for chattels wrongfully held by her; and the remedy in the probate and circuit courts for investigating the accounts and settling claims and set-offs is not only sufficient, but is imperative after the controversy has begun and the creditors have actively entered into the litigation; and where the rights are fixed there is a remedy on the probate bond. Id.

11. A father obtained the allowance of a claim against his son's estate, but the son's widow, who was his executrix, refused to pay it, and conveyed away the property out of which it should have been satisfied, and the estate remained unsettled. Held that his remedy was not in equity, but, if not lost by neglect, was in the probate court, where, in spite of the conveyances, the land was liable in du course of administration and for a limited period, to the claims of creditors, and after the arrival of the time of payment the executor was liable personally or on his bond. Winegar v. Newland, 367.

12. Where a claimant against an estate neglects to take advantage of the means provided by statute for satisfying his claim, he has no remedy at law or in equity. Id.

13. Where the creditors of an estate have notice that its owner has lately held a mortgage which has only partly matured, they should inquire into the matter in the probate court if they wish to have it applied to their benefit; and an unexplained delay of fifteen years in doing so is fatal to any complaint of it as a fraudulent mortgage. Dickinson v. Seaver, 624.

14. A widow's relinquishment of her "thirds" and acceptance of a legacy do not place her in the position of a purchaser for a valuable consideration so far as to entitle her claim as legatee to priority over the claims of creditors of the estate; she is placed on the same footing with other creditors, and, if the estate is insufficient, is entitled to share pro rata with them. Tracy v. Murray, 109.

15. A widow's release of dower and acceptance of a legacy, though a purchase, is not completed until the provisions of the will are accepted after her husband's death, and her claim then becomes simply a debt of the estate. Id.

16. Where the probate court had delayed for nearly eight years to order the payment of claims allowed against an estate, and had then directed them to be paid within a fixed time after which they would become a personal claim against the administrator, and he neglected to pay them and died within six years thereafter, it was held, that they became a valid claim against the administrator's estate. Palm's Appeal, 637.

ld.

17. When an administrator's statutory liability for claims against the decedent's estate has once attached, the creditor's right becomes absolute against him and his estate, whether the claim could or could not have been enforced against the decedent's estate. 18. The allowance of claims against an estate by a court of competent jurisdiction cannot be impeached in a collateral proceeding if there was no fraud in allowing them and no appeal was taken. Id. 19. Where claims against an estate are made a personal charge against the administrator, it is presumed that he retains sufficient assets to extinguish them, which assets, if he does not pay the debts, pass after he dies to his representatives, who remain liable for the debts. Id. 20. An administrator should hasten the payment of claims against the decedent's estate, and if he allows payment to be delayed so that he becomes personally liable, he cannot claim to be prejudiced. Id. 21. The probate court may require executors whose accounts are under investigation, to submit to oral examination under oath by counsel for heirs and legatees of the estate. In re Rathbone's Estate, 57. 22. Where a residuary legatee is made executor, and gives bond to pay his testator's debts and legacies, the assets of the estate become part of his general property, and no more subject to the enforcement of a trust in favor of other legatees. McElroy v. Hatheway, 399.

23. Where a residuary legatee has given bond, as executor, to pay the testator's debts and legacies, a surety on his bond cannot maintain a bill in equity against him and the co-sureties for an accounting for assets of the estate, the appointment of a receiver, and an administion of the estate by the chancery court. Id.

24. Costs of a litigation of doubtful questions arising in the settlement of an estate, are allowed to be paid from the estate. Tracy v. Mur ray, 109.

ESTOPPEL

to deny lien of MORTGAGE OF CHATTELS, 7.

by covenant: REAL PROPERTY, 4.