EJECTMENT-Continued.

it appeared that the husband, prior to a second marriage,
conveyed certain land to a son, imposing upon it the burden
of an annual payment to the intended wife, in case the mar-
riage occurred and she survived him; that, after the mar-
riage, the husband inherited certain land and conveyed it
without the wife's signature; and that, after the husband's
death, the widow, on the payment of a lump sum, executed
a release of the annuity provided in the first deed. Held,
that under section 8934, 2 Comp. Laws, the widow was not
barred of her dower interest in said inherited lands, it being
conveyed without obtaining her signature, nor was it barred
by section 8933, 2 Comp. Laws, since she did not assent to
the pecuniary provisions made for her benefit prior to the
marriage. Id.

See JUDGMENTS (1).

ELECTIONS-See INTOXICATING LIQUORS (5-10, 15).
ELECTRICITY-See MUNICIPAL CORPORATIONS (22-25).
EMANCIPATION-See HUSBAND AND WIFE.

EQUITY.

1. On a bill to establish an interest in certain patents, evidence
of an interference case pending in the Federal patent office
examined, and held, to be so inconsistent with complainant's
claim as to justify a remanding of the record to the trial
court for consideration in connection with the evidence in
said interference case. Barthel v. Crippen, 20.

2. A general plan of building restrictions in a district where com-
plainant purchased property, subsequently modified by the
vendors in sales known to complainant, without objection
from him, and changed in a public auction which complain-
ant attended without protest, and at which he purchased a
lot subject to the modified restrictions, will not be enforced
in equity to the injury of innocent purchasers. Stott v. Avery,
674.

See CANCELLATION OF INSTRUMENTS; CARRIERS (4); NUISANCES;
PLEADING (2); SPECIFIC PERFORMANCE (3, 4); WILLS (1).
EQUITY JURISDICTION-See CORPORATIONS (2).

ESTATES OF DECEDENTS.

1. Ex parte statements of a decedent, not made in the presence
of claimant, are inadmissible to show payment of a claim
against the estate for services rendered decedent in her life-
time. Bettinghouse v. Bettinghouse, 169.

2. Where, in such action, there was testimony that the services
were rendered without expectations of pecuniary reward, the
court could not decide, as a matter of law, that claimant was
entitled to a judgment; the question being for the jury. Id.
3. In a claim against the estate of decedent, based upon certain
certificates of deposits, evidence examined, and held, insuf-
ficient to support the claim, and a verdict was properly di-
rected for defendant. Lattin v. Lattin's Estate, 223.

ESTATES OF DECEDENTS-Continued.

4. Error cannot be predicated upon an instruction that interest
could be computed from the date of the execution of an in-
strument guaranteeing the payment of a loan, the considera-
tion for which was an assignment at an earlier date of a pol-
icy of insurance pledged by the insured for the payment of
said loan; since from the language of the instrument itself in-
terest might have been computed from the earlier date.
Spring v. Perkins, 327.

5. On the trial of a claim against an estate for a debt which the
claimant contended was revived by a payment made by the
debtor, a question to a witness (who claimed to have been
present at the time of such payment, and stated that he
knew of the hearing before the commissioners) as to why he
did not attend such hearing was properly excluded; no evi-
dence appearing upon the record that the witness had been
requested or subpoenaed to appear at such hearing. Id.

6. Proof of the allowance by the commissioners of a claim against
the estate of a decedent prima facie establishes its validity;
and where, under a decree of this court allowing defendants
to show the invalidity of a claim which had been so allowed
and no appeal taken, the evidence on behalf of a contestant
is insufficient to prove its invalidity, the award will be sus-
tained. Warren v. Sheehan, 432.

7. An attorney's fee of $50 per day for attendance in court and
a charge of $25 for settling a decree are not, under the evi-
dence, so clearly excessive as to warrant the setting aside of
an award of the commissioners.

Id.

8. A son presented a claim against the estate of his mother for
moneys lent to, and paid out for, her. There was oral testi-
mony tending to prove a loan of $450 in August, 1889, and of
various other sums during the years from 1898 to and includ-
ing 1906. He also produced a writing, dated in November,
1904, executed by his mother, admitting a loan of $450 to pay a
mortgage on my property," in August, 1889, $50 to pay taxes,
in August, 1904, and concluding, "It is my request that
these debts and all other money he has given me from time
to time be paid out of my property after my death." Held,
there being no testimony tending to disprove the making of
the loans as alleged, and none tending to prove that the writ-
ing was not intelligently and freely executed, that a verdict
for claimant was properly directed. McGregor v. McGregor's
Estate, 487.

9. Evidence that claimant's father, who died in August, 1889,
paid and discharged, in November, 1888, a real estate mort-
gage upon premsies on which his fishery was located had no
tendency to prove that the alleged loan of $450 by the son to
his mother was in fact a loan to the father, and was rightly
excluded. Id.

10. Evidence examined, and held, that in that received and that
excluded there is none tending to prove that the writing in
question was not intelligently executed by the deceased. Id.
See EXECUTORS AND ADMINISTRATORS; LIMITATIONS, STATUTE OF.

ESTOPPEL-See ACCOUNTING (3); APPEAL AND ERROR (12);
BILLS AND NOTES (5); EQUITY (2); HEALTH; HUSBAND AND
WIFE; INSURANCE (3); JUSTICES OF THE PEACE (3); LIMITED
PARTNERSHIPS (2); MANDAMUS (2, 6); TRUSTS (4).

EVIDENCE.

1. A witness experienced in metallurgical analysis is competent
to give expert testimony in respect to the condition of an
alleged defective tool, as shown by a subsequent chemical
analysis and microscopical examination. Potvin v. West Bay
City Shipbuilding Co., 201.

2. The admission in evidence of tools and photographs of micro-
scopical enlargements of sections thereof was permissible
to explain and illustrate the testimony of the expert and
to enable the jury to understand the character of such
tests and the basis of the expert's opinion; the trial court in
the charge fully protecting the defendant against harmful
inferences that might be drawn from a comparison of the
exhibits. Id. 202.

3. In an action by an employé against a mine owner for injuries
resulting from the negligence of an incompetent engineer,
employed in violation of Act No. 100, Pub. Acts 1905, it was
not error to exclude testimony tending to show statements
of defendant's mine boss, made on the night after the acci-
dent, relative to the competency and trustworthiness of the
engineer. Layzell v. J. H. Somers Coal Co., 268.

4. On the examination of a witness, who was the attorney for
the prospective purchasers and examined the abstract and
made a report to them, he was asked why no mention was
made of the reservations in the deed, and was permitted to
answer: That his recollection was not clear, though he
thought the question of reservations was understood by the
parties, and that he did not mention it for that reason, and
that he so answered because of his habit to call his clients' atten-
tion to anything which is unusual in a deed, and that if there
had not been an understanding of that kind he would have
called their attention to it. Held, that as there was nothing
to indicate the source from which the bare impression of
which he undertook to testify was derived, his statement
was no evidence to show the fact, and on defendant's motion,
after the close of the testimony, such answer was properly
stricken from the record. Weaver v. Richards, 321.

5. The admission in evidence of a letter from one of the prospec-
tive purchasers to defendant at the time when the deal was
pending, if erroneous, was harmless, where the witness on
the trial had testified substantially to the same effect; since
the burden of proof was upon plaintiff to prove that said pur-
chasers were willing to accept the land subject to the reser-
vations contained in the deed. Id.

6. The admission in evidence of a contract between defendant
and a third person relating to the land, held, under the in-
structions, not prejudicial to plaintiff. Id.

7. The admission in evidence of a letter written by respondent

EVIDENCE-Continued.

to the complaining witness two years before the assault, held,
in view of other testimony, to be admissible as showing the
nature and extent of a previous ill-feeling which existed be-
tween them, and which respondent did not deny. People v.
Reycraft, 451.

8. Judicial notice will be taken of the fact that trees annually
shed limbs. Miller v City of Detroit, 631.

9. Testimony tending to show that inexperienced men would be
apt to employ the method employed by plaintiff is relevant
to show the necessity of instructions and caution. Johnson v. ◄
Desmond Chemical Co., 669.

See AGRICULTURAL SOCIETIES (3); APPEAL AND ERROR (12);
CANCELLATION OF INSTRUMENTS (1); CRIMINAL LAW (4, 6);
EJECTMENT (1); ESTATES OF DECEDENTS (1, 2, 5, 6, 9); Hus-
BAND AND WIFE; MARRIAGE (1); MASTER AND SERVANT
(5, 12); MUNICIPAL CORPORATIONS (2, 26); NEW TRIAL;
TAXATION (4); TRIAL (6); VENDOR AND PURCHASER (1);
WITNESSES.

EXCEPTIONS-See APPEAL AND ERROR (1, 3, 9, 16).
EXCEPTIONS, BILL OF.

Section 10504, 3 Comp. Laws, construed in connection with
Cir. Ct. Rule 47, entitles an appellant to a reasonable time,
after a denial of a motion for a new trial, in which to settle
a bill of exceptions; and failure to file a bond under section
10355, 3 Comp. Laws, does not deprive the trial court of juris-
diction to grant such extension-such bond being required
only for a stay of proceedings. Marshall v. Saginaw Circuit
Judge, 289.

EXCESSIVE VERDICT-See MASTER AND SERVANT (2).

EXECUTION.

On a bill to set aside a levy and sale upon execution, it ap-
peared that complainant's father executed a deed, which was
in fact a mortgage, to secure the payment of a loan. Upon
the payment of said loan, the grantee deeded the land to
complainant who went into immediate possession although
said deed was not then recorded. Subsequently the land was
sold to defendant on a levy and sale on execution. Held,
that the judgment creditors and the purchaser were put upon
notice by the actual occupancy of complainant, and that
they could acquire at such sale no greater rights than the
judgment creditor had; since a grantee in possession of land
has title against all the world, whether his deed is recorded
or not. Brady v. Sloman, 423.

See ESTATES OF DECEDENTS (10); WILLS (2).
EXECUTORS AND ADMINISTRATORS.

1. An instrument, guaranteeing the payment of a loan, was exe-
cuted to an administrator after the filing of the inventory of
the estate, and was not included in the final settlement of

156 MICH.-46.

EXECUTORS AND ADMINISTRATORS-Continued.

such administrator. After the death of the maker of said in-
strument, claimant petitioned for the appointment of an ad-
ministrator de bonis non for the purpose of presenting said
instrument as a claim against decedent's estate, and stated
that it, by agreement of the parties interested, had been with-
held from administration and had not been paid and was still
due the estate. Held, that as the claim was not collected or
distributed by the general administrator, it still remained a
part of the estate, and the appointment of an administrator
de bonis non was therefore authorized. Spring v. Perkins,

327.

2. When an executor or administrator refuses to file an account,
it is proper for those interested to ascertain, so far as they
can, the amount of property that came into his hands, and
to state an account for him. Stevens v. Ottawa Probate
Judge, 526.

3. Where, on petition of certain legatees against an executor for
his removal and for an accounting, the answer filed raised
the question whether or not the execution of certain "powers
and authorizations was a settlement of the estate as be-
tween the legatees, and that if he was liable to them for an
accounting it was as trustee and not as executor, it was
proper for the court to take testimony upon all the questions
raised and settle them in one decree. Id.

4. Where, on appeal from the order of the probate court for an
accounting, it appears from said "power and authorizations"
that money of the estate had been used to pay liabilities of
certain legatees, it was error, in fixing the amount of the
appeal bond, to include sums owing to such legatees and
their heirs. Id. 527.

See CONSTITUTIONAL LAW (1); LIMITATIONS, STATUTE OF:
TRUSTS (5).

EXPERT WITNESSES-See EVIDENCE (1, 2).

EXTENSION OF TIME-See EXCEPTIONS, BILL OF.

FELLOW-SERVANTS - See APPEAL AND ERROR (14); MASTER
AND SERVANT (10, 14, 15).

FIRE INSURANCE-See INSURANCE (3).

FIRES-See NEGLIGENCE.

FIXTURES-See LANDLORD and Tenant (1).

FORECLOSURE-See LAND Contracts (1, 2, 4).

FOREIGN CORPORATIONS-See CORPORATIONS (1).

FORFEITURE-See LAND CONTRACTS (3); MECHANICS' LIENS.
FRANCHISES-See MUNICIPAL CORPORATIONS (20, 21).

FRAUD.

Complainants subscribed for $6,000 of preferred stock in de-