that he knew they were not assets belonging to the beneficiaries. There is nothing in the decree or record anywhere in conflict with this, nor is there the slightest pretext for calling these notes assets after they came to the trustees. They were no doubt assets of Mrs. Bartlett's estate until they were assigned to the trustees, and then they at once became investments, for such was that court's decree. For another clear and conclusive reason these notes were not assets: They never belonged to the beneficiaries at all, until they were assigned to the trustees by the probate court's decree, and then that decree fixed their status as being not debts to be collected, but as legacy investments to be held for them. Without intending to make any admission, we might admit that it is the duty of the fiduciary to promptly collect ordinary assets in the form of notes and the like. But we deny that that rule, if right, applies here."

There was no occasion to construe the will, and the probate court was not asked to and did not construe it. The trustees were not appointed by the court, but by the will. Gibney v. Allen, 156 Mich. 301 (120 N. W. 811); Wooden v. Kerr, 91 Mich. 188 (51 N. W. 937). Nor did they ask the court for instructions.

Counsel for appellants construe the order of the court as either a direction to invest or an approval of an investment already made. It is not necessary to give it a construction favorable to either theory. In terms it approves and confirms the provision agreed upon by the executors and the trustees for paying certain legacies, not in money, but in notes. It refers to the receipts, and if they are again examined it will appear that certain notes belonging to the estate have been "accepted in satisfaction" of legacies bequeathed by the will to be invested. The record does not support the assumption that the probate court understood that the notes so accepted were to remain uncollected and represent, for an indefinite period, the trust fund. But whatever the real intention of the trustees and the court may have been, the result must be the The proceedings to administer an estate are essentially proceedings in rem. There is no residue of an es

same.

tate to assign until general legacies, as well as debts and expenses, have been paid. The court could properly make no order requiring a legatee of money to accept anything but money in satisfaction of the legacy. Such an order would be a nullity. It is unnecessary to consider the extent of the powers of probate courts under Act No. 253, Pub. Acts 1899. Jurisdiction to allow the final account of executors and to close an estate is not derived from this statute, and no one would be bound by the notice of such a proceeding to assume, or to suspect, that the court would incorporate in an order closing an estate and discharging executors a provision affecting rights which, upon the theory of appellants, did not attach until the estate was closed. The will gave the legacy to the executors and trustees. The legacy could not be satisfied except by payment of money unless the trustees consented. That portion of the order approving the disposition of these notes rests, therefore, upon the consent of the trustees.

We notice, in passing, that the receipt of the trustees to which the order of the probate court as well as the petition of the executors refers, describes a note for $10,000, made by the A. F. Bartlett Company, due two years after date, and a note of Alexander M. Lemke for $5,000, due two years after date, as two of the notes accepted in satisfaction of legacies. Neither note appears in the inventory of the estate of Mrs. Bartlett, and the note of Lemke does not appear in the inventory of the trust estate which the trustees filed in compliance with the statute. Instead, this inventory describes a note of the A. F. Bartlett Company for the same amount. The receipt states, also, that the Ross Bros. notes which have been accepted are each payable to the order of A. M. Lemke. Without explanation, one would suppose that these notes were, or were to be, indorsed by the payee. The inventory of the trust estate does not so designate the notes. Complainant is not concerned with these facts except as they indicate, or

do not, that it was supposed that the probate court approved the taking of any of the notes as an investment, and except as it may bear upon the question of complainant's acquiescence, with knowledge of the real facts, in the conduct of the trustees.

It may be added, in conclusion, that we are not prepared to hold that there is authority, statute or other, for substituting, in the first instance, the discretion and prudence of a court for that of a trustee charged by the terms of a will with the proper investment of funds.

2. Being of opinion that the case must be determined without reference to the good or bad faith of the trustees, we do not consider the question.

3. As has been stated, the trustees filed an inventory of the property comprising the trust estate. It does not indicate to which of several trusts created by the will either of the notes described attaches or belongs. At the time it was filed, none of the notes accepted in satisfaction of the legacies had become due. Thereafter, several accounts were filed, showing receipts of interest and sufficiently informing any one interested that complainant derived whatever money had been paid to it from Ross Bros. None of the accounts was allowed. The burden rested upon defendants to prove acquiescence, with knowledge, on the part of the beneficiary in the course pursued by them. The testimony fails to show knowledge. Such testimony as was given tends to prove that the trustees paid the interest collected, not to the complainant or to any of its officers, but to the treasurer of a local society.

Mr. Corning states, in a letter appearing in the record, written after the failure of Ross Bros., that he has been advised that it should not so have been paid.

The court below reached the right conclusion, and the decree is affirmed, with costs to complainant.

BROOKE, BLAIR, and STONE, JJ., concurred with OSTRANDER, C. J.

BIRD, J. I concur in the conclusion reached in this case by Mr. Justice OSTRANDER, but I am of the opinion that the delinquency which should charge the trustees personally with the payment of the trust fund is their undue renewals and extension of the note, and their failure to collect it at the proper time.

BACKUS v. HOYT.

1. TAXATION-REDEMPTION-TAX TITLE-TENDER-EQUITABLE RE

LIEF.

In a suit to redeem land from a tax purchase, after a tender by the complainant of the amount required by law, the purchaser is equitably entitled to reimbursement for sums paid to redeem from a subsequent tax in order to protect his interest.

2. SAME JOINT PURCHASE-BONA FIDES.

Defendants that were jointly interested in the purchase of tax

titles on various lands are not purchasers in good faith of lands so bought of the State by one of them, who conveyed by quitclaim deed to the others.

Appeal from Alcona; Connine, J. Submitted October 25, 1910. (Docket No. 106.) Decided February 1, 1911.

Bill by Newton D. Backus, administrator of the estate of Sarah E. Backus, deceased, against Albert U. Hoyt, Henry K. Gustin, and Charles Conklin, to redeem certain lands from a tax purchase. From a decree for complainant requiring the payment of a specified sum, both parties appeal. Affirmed.

Albert McClatchey, for complainant.

Henry K. Gustin, for defendants.

OSTRANDER, C. J. Taxes assessed against certain lands in Alcona county in the year 1901 were unpaid, and the lands were sold and bid to the State in May, 1904. Defendant Hoyt purchased from the State, and, the lands not having been redeemed, received the tax deeds. The lands were assessed for taxes in 1902, 1903, and 1904, the tax remaining unpaid. Defendant Hoyt, on December 14, 1905, filed proof of personal service of notice to redeem upon Sarah E. Backus, which notice was signed, “Albert U. Hoyt. Place of business, Bay City, Michigan." Complainant is administrator with the will annexed of the estate of Sarah E. Backus, deceased, who was the person upon whom the notice to redeem was served. Within six months after service of said notice, the said owner, by her agent, Henry N. Backus, tendered to said Hoyt personally, at Bay City, $92.82, and the fees of the sheriff for serving said notice, which tender was refused. The sum tendered was the amount demanded by the notice. The money tendered was not deposited or placed subject to the order of Hoyt. After the refusal of the tender, and in the year 1909, defendant Hoyt conveyed the land by quitclaim to defendants Gustin and Conklin, who claim to be owners of the land. Hoyt redeemed the lands from the taxes of 1902 on April 30, 1906, paying $61.84, and the defendants, or some of them, have since paid or caused to be paid the taxes for the years 1903, $62.70, for the year 1904, $44.94, and defendant Gustin redeemed them from taxes for the year 1905 by paying $45.78. To a bill filed by the administrator to compel release of Hoyt's tax title and a reconveyance, there was an answer, a cross-bill, which was answered, and replication. The cause came on for hearing February 10, 1910. The facts which have been stated are not now contested.

The court found that a legal tender was made to defendant Hoyt, that the other defendants are neither of them good-faith purchasers from Hoyt. In the decree it is provided that complainant may redeem by paying to defendants or depositing with the register $168.21, less