454

LYONS . YEREX.

[Mich. same justice who wrote Tillman v. Davis, 95 N. Y. 17; 47 Am. Rep. 1. The court say: "Mr. Griswold was not a lawyer, and hence cannot be supposed to have used these words in their strict, technical, legal sense, but it is reasonable to suppose that he used them in the general sense in which they are frequently used and generally understood by laymen." In Kaiser v. Kaiser, 13 Daly, 522, it was held that the words "legal heirs," used in a certificate of membership in a mutual insurance association, include the widow. Bookstaver, J., says: "We think all this entirely inconsistent with the theory that he used the phrase 'legal heirs' in its ordinary acceptation, but we think that he intended thereby to designate his wife and children, if he should leave any; and this is the meaning often attached to the phrase by the unlearned, especially when only personal property is concerned."

Gauch v. St. Louis etc. Ins. Co., 88 Ill. 251; 30 Am. Rep. 554, is also cited, but the court there held that under the statute the widow did not take an interest in her husband's personal property as a distributee, but as dowress.

In Lawwill v. Lawwill, 29 Ill. App. 643, decedent held 217 a policy in the Masonic Benevolent Association payable to his legal heirs. He died, leaving a widow, but no children. The statute provided that, in case the husband died without issue, the widow should take all the personal property. The court held that the widow was within the contingencies specified in the statute, and was the heir at law to his estate, and that the word "heirs," when uncontrolled by the context, must be construed to mean the persons designated by the statute as such in case of intestacy: See, also, Covenant etc. Assn. v. Hoffman, 110 Ill. 603, and Alexander v. Northwestern etc. Assn., 126 Ill. 558.

In Johnson v. Knights of Honor, 53 Ark. 255, 260, Battle, J., says: "Suffice it to say that the weight of authority holds that the word 'heirs,' when used in any instrument to designate the persons to whom personal property is thereby transferred, given, or bequeathed, and the context does not explain, it, means those who would, under the statute of distribution, be entitled to the personal estate of the persons of whom they are mentioned as heirs, in the event of death and intestacy. In many states where the widow is entitled to take under the statute of distribution she is held to be an heir of her deceased husband as to his personal estate, but it is dif

... •

455

ferent in this state. It is true that section 2592 of Mansfield's Digest provides: 'If a husband die, leaving a widow and no children, such widow shall be endowed of onehalf of the real estate of which such husband died seised, and one-half of the personal estate, absolutely and in her own right.' But she takes the one-half of the personal estate as dower, absolutely and independently of creditors, and not as a distributive share."

In Bailey v. Bailey, 25 Mich. 185; Barnett v. Powers, 40 Mich. 317; Richardson v. Martin, 55 N. H. 45; Ivins' Appeal, 106 Pa. St. 176; 51 Am. Rep. 516; Luce v. Dunham, 69 N. Y. 36; Dodge's Appeal, 106 Pa. St. 216; 51 Am. Rep. 519, the property with reference to which the word was used was real estate. In the last-mentioned case, Sterrett, J., in the opinion, says: 218 "If the fund for distribution were personalty the widow would perhaps be entitled to participate therein."

In De Beauvoir v. De Beauvoir, 3 H. L. Cas. 524, the property devised was both real and personal. The court say: "On the face of the will it was the intention of the testator to make the two funds a blended property, and to give them the character of real estate, and to make both properties go together."

Niblack on Mutual Benefit Societies, section 247, says: "At common law one's heirs are the persons who would inherit his real estate by right of blood. The statutes of adoption and those of descent have, in every state, to a greater or less degree, enlarged the meaning of the word, so that it may include persons not of the blood of the intestate. At common law the word had no reference to the distribution of any personalty, and this rule has not been disturbed by statute in some states. In those states, therefore, where this common-law rule obtains, the word 'heirs,' in a statute setting forth a class of persons who may take the fund, or in a certificate designating the persons who shall take the fund on the member's death, must be taken to mean the person or persons to whom the real estate of the member will pass under the statutes of descent, whether such person or persons be akin to him or not. In most states, however, the statutes provide not only who shall inherit the realty of an intestate, but also who shall be the heirs of his personal property."

The same author, at section 248, says: "Nothing is more natural, therefore, than to regard the heirs of the intestate's personal property as the beneficiaries designated in the con

456

WOLCOTT v. PATTERSON.

[Mich. tract of insurance as 'my heirs'": See Houghton v. Kendall, 7 Allen, 72; White v. Stanfield, 146 Mass. 424; Addison v. New England etc. Assn., 144 Mass. 591; Collier v. Collier, 3 Ohio St. 369; Eby's Appeal, 84 Pa. St. 241; Freeman v. Knight, 2 Ired. Eq. 72; Kentucky etc. Ins. Co. v. Miller, 13 Bush, 489; Wilburn v. Wilburn, 83 Ind. 219 55; Gosling v. Caldwell, 1 Lea, 454; 27 Am. Rep. 774; Ward v. Saunders, 3 Sneed, 387; Croom v. Herring, 4 Hawks, 393.

Under the circumstances, we think it must be presumed that by the use of the words "my heirs" the insured intended to include those designated by the statute as such, and to whom the law would give that class of property in case of intestacy.

The judgment must therefore be affirmed.

GRANT, MONTGOMERY, and HOOKER, JJ., concurred.

LONG, J., did not sit.

HUSBAND AND WIFE AS HEIRS ONE TO THE OTHER.-Neither husband nor wife is heir to the other; the interest which one has in the estate of the other exists by virtue of the marital relation, rather than as heir to the decedent: See the extended note to In re Ingram, 12 Am. St. Rep. 83, and In re Estate of Dobbell, 104 Cal. 432; ante, p. 123.

WOLCOTT V. PATTERSON.

[100 MICHIGAN, 227.]

MARRIED WOMEN-POWER TO CONTRACT-ATTORNEY'S SERVICES IN DI. VORCE SUIT.-A married woman may, by contract, make herself charge. able with the value of services rendered by an attorney upon her employment to secure a divorce from her husband, and the husband is not liable for such services unless made so by order of court. MARRIED WOMEN-LIABILITY FOR EXPENSES OF DIVORCE PROCEEDING.— A statute providing that in divorce proceedings "the court may, in its discretion, require the husband to pay any sums necessary to enable the wife to carry on or defend the suit," including costs, and may award execution therefor or direct such sums "to be paid out of any property sequestered, or in the power of the court, or in the hands of a receiver,” clearly indicates that such proceedings are to be maintained at the cost of the wife, unless the court shall relieve her therefrom by an order for expense money to be paid by her husband.

J. D. Conely, for the appellant.

M. S. Wolcott, for the respondent.

228 MONTGOMERY, J. Plaintiff is an attorney at law, and recovered in the court below for professional services rendered

May, 1894.]

WOLCOTT v. PATTERSON.

457

to the defendant, who is a married woman. A portion of the services related to the separate estate of the defendant, who is shown in the record to have had considerable property in her own right. Included in the bill of particulars was a charge of one hundred dollars for retainer and services in a divorce suit brought by defendant against her husband. This proceeding was not carried through to a termination, but was discontinued by Mrs. Patterson before a decree.

Substantially the only question presented by the record is whether a married woman may, in this state, make herself chargeable with the value of services rendered by an attorney upon her employment to secure a divorce from her husband. It is contended by the defendant that the husband is liable for such services, and that the wife is not. The authorities are not uniformn upon the question, but we think the weight of authority negatives such liability on the part of the husband: See Schouler on Husband and Wife, sec. 104, and cases cited in note. In some of the states the liability of the husband is asserted (Sprayberry v. Merk, 30 Ga. 81; 76 Am. Dec. 637; Porter v. Briggs, 38 Iowa, 166; 18 Am. Rep. 27; Langbein v. Schneider, 27 Abb. N. Cas. 228; 16 N. Y. Supp. 943), and in these jurisdictions it is held that the wife is not competent to charge herself with such expenses: Musick v. Dodson, 76 Mo. 624; 43 Am. Rep. 780; Cook v. Walton, 38 Ind. 228; Whipple v. Giles, 55 N. H. 139. See, however, dissenting opinion of Pettit, C. J., in Putnam v. Tennyson, 50 Ind. 456, 461. We think 229 the cases which deny the husband's liability are more consonant with the holdings of this court that one who supplies the wife with goods apparently suitable to her situation in life does so at his peril, and can only recover if the husband has failed to supply necessaries: Clark v. Cox, 32 Mich. 204.

Is the wife competent to contract for such services? The wife may exhibit her bill for divorce in her own name: Howell's Stat., sec. 6233. And by section 6235 it is provided that "In every suit brought, either for divorce or for a separation, the court may, in its discretion, require the husband to pay any sums necessary to enable the wife to carry on or defend the suit during its pendency, and it may decree costs against either party, and award execution for the same, or it may direct such costs to be paid out of any property sequestered, or in the power of the court, or in the hands of a receiver."

458

COULTER v. Norton.

[Mich. The statute clearly indicates that such proceedings are to be maintained at the cost of the wife, unless the court shall relieve her of such cost by an order for expense money to be paid by her husband: Ross v. Ross, 47 Mich. 185. It has also been held in this state that a married woman is competent to assert her rights either as plaintiff or defendant, and, where a suit is brought against her as defendant, is bound to do so: Wilson v. Coolidge, 42 Mich. 112. It would seem to follow logically that, having the power to bring suit, and being in such suit responsible for costs, she must be held competent to contract for the services of an attorney to represent her rights. We think the right to contract for such services is necessarily incident to and included in her right to bring suit.

In this view there was no error committed to the prejudice of the defendant, and the judgment should be affirmed, with costs.

The other justices concurred.

MARRIAGE AND DIVORCE-LIABILITY OF HUSBAND FOR WIFE'S ATTORNEY'S FEES IN ACTION FOR DIVORCE.-An attorney cannot recover, as against the husband, for legal services rendered the wife in a contemplated suit for divorce on the ground of his cruelty, for the reason that prosecuting or defending a suit for divorce has no relation to her protection as a wife: Kincheloe v. Merriman, 54 Ark. 557; 26 Am. St. Rep. 60, and note, with the cases collected.

COULTER V. NORTON.

[100 MICHIGAN, 389.]

LANDLORD AND TENANT-COVENANTS-RIGHTS OF TENANT-EVICTION.Under a sublease of a cigar and news room in a hotel, with the appurtenances thereto, and the right of entrance to and from the hotel rooms, together with the entire cigar privilege of the hotel, the tenant is en. titled to have the hotel kept open without reference to an implied covenant for quiet enjoyment. The abandonment of the lower floor of the hotel and the use of a portion only of the upper floors for sleeping-rooms in connection with a hotel across the street constitutes an eviction of such tenant.

LANDLORD AND TENANT-ASSIGNMENT OF LEASE-EVICTION-LIABILITY OF ASSIGNEE.-An assignee of a lease, to whom a subtenant attorns, is liable for the eviction of such tenant, accomplished by such assignee's

acts. LANDLORD AND TENANT-EVICTION.-MEASURE OF DAMAGES for the eviction of a tenant is the actual value of the unexpired term, less the rent reserved.