Nor do we think it possible the Todd Case upon the here is a ratification of a that the local camp had

contention: First. No demand was ever made for the return of the assessment, and within the case of A. M. Todd Co. v. Insurance Co., 137 Mich. 188, we think it cannot be said that there was a waiver by the home office of the provisions of section 15. to distinguish the case from ground that what is claimed previous waiver. It is said already waived the provision. But the contract was with the great camp, and the waiver must be by the great camp, and a waiver which would bind the great camp must arise from a failure to do some act which it was its duty to do to avoid the waiver. No act of the assured was induced by any nonaction on the part of the great

camp.

But, more than this, it will be noticed that under the provisions of section 15 the assured was not excluded from the benefits of the society. There is a social feature connected with the organization. There is also, as before stated, a provision for a payment of a benefit to the assured's representatives in case of death. Section 15 does not wholly exclude the right to recover in any case under the policy. Had all the notice which the clerk of the Wyandotte camp had been brought home to the great camp, they would still have the right to assume that the payments of dues were for the benefits which were still open to the assured notwithstanding his engaging in an employment named in section 14. That provision only rendered the certificate void as to any claim on account of the death of a member by accident directly traceable to employment in such occupation or to disease directly traceable thereto. For death occurring from any other cause liability on the part of the company still continued, and it was not bound to assume that the payment made by the assured was with any other purpose than to maintain his policy in force for the benefits which could accrue and would accrue in case of death, notwithstanding the fact that he had engaged in an employment prohibited by

by-laws 14 and 15. There was no waiver by reason of the acceptance of dues and assessments by this society. Upon this question the case of Modern Woodmen of America v. Talbot, 76 Neb. 621, is directly in point.

Upon the question of waiver by accepting proofs of death with knowledge of the facts as to the manner of the assured's death, the facts are that the first information of the manner of the death of the assured came to the great camp through a notice from the clerk of the local camp. The clerk of the great camp replied to this letter, addressing the local clerk, stating that upon learning of the occupation of the assured he should have refused to accept further dues and assessments on his account, and adding:

"You should not assist the beneficiary in executing death proofs unless called upon to furnish evidence in your official capacity as camp clerk only. It is to be regretted indeed that the Neighbor should have met his death directly from his occupation, but under the circumstances I do not see how the society is liable under the certificate held by the Neighbor. I do not think it would be best for you to put the beneficiary to any unnecessary expense in making a trip to Rock Island to present the case to the board, as the case will undoubtedly be referred to some member of the board for special investigation."

Nothing further appears to have been done until the 30th of July, when Messrs. Bird & Sampson, attorneys for the plaintiff, wrote to the head clerk of the great camp, stating that the claim had been left in their hands for collection, and adding:

"You will please inform us if there is any objection to the payment of this claim, and, if so, what. Please let us know whether the proof of death has been properly made."

The answer to this on August 1st was:

"Will say as yet death proofs have not been filed at this office for consideration by the board of directors. Therefore the claim has never been passed upon as to whether it is a legal claim against this society. From evidence on file it appears that he was in one of the prohib

ited occupations, and came to his death by reason of such occupation. This being the fact, I presume the beneficiary realized that she has no legal claim against this society. Trusting this will supply you with the desired information," etc.

Replying to this, on August 6th, Messrs. Bird & Sampson wrote again to the head clerk, asking that blanks for proof of death be sent forward. In reply to this the great clerk replied:

"The society does not consider itself liable under certificate No. 832548, issued to Albert W. Showalter through Camp No. 9980, of Wyandotte, Michigan. However, if you wish to present facts for the consideration of the society's board of directors, you may do so, and for that purpose I enclose a complete set of death proof blanks. By furnishing these blanks the society does not waive its right to deny any and all liability to the beneficiary under the certificate issued to Mr. Showalter."

It is claimed that expense was incurred in preparing the proofs of death and forwarding them, and it is urged that within the case of Burnham v. Casualty Co., 117 Mich. 154, there was a waiver of the right to insist upon the defense that the deceased was engaged in a prohibited employment. It is obvious that the same contention could be made as to any defense whatever. Indeed, as to any other defense than that attempted in this case, it might be possible to say upon the authority of the case cited that there was a waiver. But the reading of this correspondence makes two things clear: First. That the company did not admit liability. They took every means to disclaim that there was liability. Second. That in the very first communication to Messrs. Bird & Sampson they stated precisely the same defense that is attempted to be made in this case, namely, that from evidence on file it appears that decedent came to his death by reason of being engaged in a prohibited occupation. Again, when transmitting the blanks of proof of death, it was

distinctly stated that the society did not consider itself liable. It is difficult to conceive how any other courteous answer could have been made than that which the clerk of the great camp gave. The case is clearly distinguishable from Burnham v. Casualty Co. In that case a distinct ground of defense was foreshadowed in the communication. The language of the communication was:

"Although we do not understand how you are going to affirmatively prove accidental death in this case, under the circumstances, yet we will comply with your request, and forward the blanks as requested, subject to the notices and stipulations printed thereon."

It was contended in that case that as to the question of whether there was accidental death there had been no waiver, but the effort was to set up another entirely distinct defense. In the present case there has been no waivering as to the nature of the defense to this claim. The very first communication of the company to its subordinate, the clerk of the local camp, as well as the first communication to Messrs. Bird & Sampson, stated with definiteness what the nature of the defense was, and the last communication again denied liability, but gave the privilege of presenting proofs of death to the society's board of directors if they saw fit to do so. No one could read this letter and understand that these proofs of death were furnished on any other assumption than at the option of the representatives of Mrs. Showalter, and that, in doing so, they would take their chances on convincing the directors of some legal or equitable claim against the company. But that the company was insisting that the assured had been engaged in a prohibited occupation, and that for this reason there was no liability, is perfectly manifest from this correspondence. There is no room for saying, therefore, that the plaintiff was misled and induced by this correspondence to incur expense or that there is any element of estoppel present.

Reaching the conclusions we have upon the two alleged waivers, it becomes unnecessary to discuss the other questions presented.

The judgment is reversed, and a new trial ordered. BLAIR, C. J., and GRANT, OSTRANDER, and HOOKER, JJ., concurred.

NOLAN v. GARRISON.

1. PROBATE COURTS - JURISDICTION - PROPERTY OF PERSONS NON COMPOS MENTIS-STATUTES-AMENDMENTS-CONSTRUCTION. Under the statute (chap. 33, 1 Comp. Laws, and chap. 234, 3 Comp. Laws) the probate court has exclusive jurisdiction of the settlement of the estates of mentally incompetent persons under guardianship except where its remedies are inadequate; and the amendment of 1871 (Act No. 39, Laws 1871) to section 651, 1 Comp. Laws, is simply declaratory of the existing law, removing any doubt as to the power of chancery courts to exercise their general inherent equity powers where the remedies in the probate court were inadequate, and the expression in said amendment "originally exercised over the same matters" refers to the exercise of such powers as theretofore existed in this State, and not to such powers as originally exercised by the courts of chancery in England.

2. SAME.

The fact that the legality and extent of a demand against an incompetent may be established in common-law courts does not necessarily give a court of chancery concurrent jurisdiction to enforce its decree by the ordinary process of execution; since under chapter 234, 3 Comp. Laws, the payment of such debts may only be enforced by suit upon the guardian's bond.

8. INSANE PERSONS-GUARDIANSHIP-CUSTODY OF PROPERTY. Where, under the statute (sections 9234-9242, 3 Comp. Laws,