"4492. (2526) (2346). Wife's Power to Contract.-The wife has full legal capacity to contract as if she were sole, except as otherwise provided by law. * *

I borrowed the money to invest in more stock provisions of the Code of Alabama then in in the Mann Lumber Company. * The force are as follows: check was given by Mrs. Atwood to me, and I indorsed it to the Mann Lumber Company, and the treasury stock was issued at the time for the amount of the loan, and the money did go to the benefit of the Mann Lumber Company. * * * I acted as Mrs. Atwood's agent in dealing with the bank; she had met the officers of the bank."

*

"4494. (2528) (2348). Power of Wife to Alienate or Mortgage her Real and Personal Property. The wife, if the husband be of sound mind, and has not abandoned her, or be not a The dispute upon the facts lies in the tes- nonresident of the state, or be not imprisoned timony of E. J. Buck, president of plaintiff, under a conviction for crime for a period of two and George W. Atwood, defendant's husband. years or more, cannot alienate or mortgage her Both testified by depositions, Buck to the ef- sent and concurrence of the husband, the aslands, or any interest therein, without the asfect that the loan was direct to defendant sent and concurrence of the husband to be manifor the purpose, as he understood, of increas-fested by his joining in the alienation in the ing her holdings in the lumber company, veyances of land. But if the husband be non mode prescribed by law for the execution of conwhich had increased its capital stock, and compos mentis, or has abandoned the wife, or is when she with her husband applied to the a nonresident of the state, or is imprisoned unbank for the loan she brought the stock der a conviction for crime for a period of two which she already owned and left it as col-years or more, the wife may alienate or mortgage her lands as if she were sole. lateral security; that it was always under"4497. (2529) (2349). Contracts Between Husstood between defendant and her husband band and Wife; She cannot Become His Sureand witness that the borrowed money was ty. The husband and wife may contract with used to buy stock for her in the lumber com- enter are subject to the rules of law as to coneach other, but all contracts into which they pany; while Atwood testified that he first at- tracts by and between persons standing in contempted to borrow money from the bank di- fidential relations; but his wife shall not, direct for the lumber company to take up tim- rectly or indirectly, become the surety for her husband." ber contracts and other of its paper that had matured, and Buck stated it was not desired to increase its loans, but suggested the bank had money which it would loan on good security, and "it was suggested" (he does not state by whom) that the plan outlined in the court's findings be followed. Atwood's testimony, as taken by deposition in Idaho, at two different times, is not harmonious with itself in all particulars. He, however, testified and repeated that the money was borrowed upon his wife's note with the lumber company stock as collateral security, to buy more stock in that company; that he received from his wife a check drawn on her account in the bank, and indorsed it to the Mann Lumber Company, for which treasury stock was issued to the amount of the check (he does not state to whom), by which method the money eventually went to the Mann Lumber Company and was used in its business. He was defendant's agent, and also secretary and treasurer of the Mann Lumber Company. Upon the proposition that the money borrowed from plaintiff's bank was used to purchase more stock in the Mann Lumber Company he and Buck are in accord. There is no direct testimony to whom the stock so purchased was actually issued. The court inferred and found that it was issued to defendant and put up as collateral. That it was issued to her is a fair presumption, but her testimony is not in harmony with the inference that was the same stock she put up as collateral.

[1, 2] This is an Alabama contract. It is undisputed that all parties connected with the transaction, including the Mann Lumber Company, were then located in and residents of the state of Alabama. Their rights are

It is to be observed that under the law of that state the wife is more fully emancipated than by the Michigan statute, the object of which is limited to abolishing the commonlaw rule respecting the marital rights of the husband over the wife's individual property, in relation to which she may contract (De Vries v. Conklin, 22 Mich. 255); but otherwise her common-law disabilities remain, and she is not liable on her individual promissory note or other obligation, even in the hands of a bona fide holder for value, unless it is shown to be connected with her separate property (Johnson v. Sutherland, 39 Mich. 579), while a contrary rule obtains in Alabama, as held in Scott v. Taul, 115 Ala. 529, 22 South. 447, where the wife who signed a note with her husband was held, as against a bona fide purchaser for value, precluded from escaping liability under the statutory defense that she signed as surety for her husband. In that state all common-law disability is removed except as otherwise provided by statute. The only statutory restriction material here is the provision in section 4497 of the Code that, while she may contract with her husband, she cannot become surety for him directly or indirectly. In Sample v. Guyer, 143 Ala. 613, 42 South. 106, referring to the statutory provisions of that state, the court said:

"Under our present married woman's law, capacity to contract is the rule, and incapacity the exception. A married woman can make all conto her separate estate, 'except as otherwise protracts, agreements, and conveyances in regard vided by law,' and the only prohibition upon her is that she cannot 'directly or indirectly become She has the surety for the husband.' husband or any one else, and to apply it, by her the right to give her property away to her

* *

the payment of his debts' "-citing previous de- cal force, constraint, or coercion, though it may cisions. consist of fraud, artifice, or cunning or excessive kindness.

Dig. 88 375, 379.]
[Ed. Note.-For other cases, see Wills, Cent.

4. WILLS 52(1)—MENTAL CAPACITY-BUR-
DEN OF PROOF.
Under Pub. Acts 1915, No. 314, c. 17, § 58,
providing that in proceedings for the probate
of wills it shall not be necessary for the propo-
nent in the first instance to introduce any proof
to show the competency of the decedent to make
a will, but the like presumption of mental com-
petency shall obtain as in other cases, the bur-
den of proof to show mental incompetency of
testator is upon the contestant.

[Ed. Note.-For other cases, see Wills, Cent. Dig. §§ 101, 103, 104, 108, 109.]

Error to Circuit Court, Allegan County; L. Orien S. Cross, Judge.

Will contest between Rolland L. Soule executor of Frank W. Curtis, deceased, and Nellie F. Curtis Henry. From a decree admitting the will to probate, contestant brings error. Affirmed.

[3] In Alabama, as generally elsewhere, a surety is held to be one who contracts to answer for a debt, default, or miscarriage of another, assuming an obligation accessorial to that of the principal debtor. Mobile, etc., Ry. Co. v. Nicholas, 98 Ala. 92, 12 South. 723. The word "surety" means a copromisor to answer for and with another, or a co-obligor with and for the principal entering into a contract with a third party at the same time jointly, or jointly and severally. Read v. Cutts, 7 Me. 186, 22 Am. Dec. 184. Conceding that the lumber company was the actual borrower from the bank under disguise, and defendant was in truth only surety for it, she was a stockholder in that company from the beginning, financially interested in it, and, if she was so inclined, could legally become surety for it in that state. Misplaced confidence in the business ability of her husband as its manager would be no defense. She even had the legal right to borrow this money from the bank and give it to her husband, to buy stock for himself, or as her agent for her. She could do anything and everything in that connection that any adult could do, except to become a surety to another for her husband. The record is barren of any evidence that her husband FELLOWS, J. Frank W. Curtis at the became legally liable as principal to the bank, time of his death was 64 years old. He was or to any one else in this transaction, and by occupation a painter, paperhanger, and his testimony is to the effect that he did not. engaged in other manual labor. He had livIt cannot be contended that the bank could ed for many years in Plainwell, Allegan hold the lumber company or Guy Atwood in-county, and was the owner of two houses in dividually as principal on those notes which it accepted from defendant and credited the proceeds to her account.

Upon this record the testimony fails to support the finding that defendant was a surety for her husband.

The judgment is reversed, with costs, and a new trial granted.

SOULE v. HENRY.

(No. 7.) July 27, 1917.) 1. APPEAL AND ERROR 230-SCOPE OF RE

(Supreme Court of Michigan.

Argued before KUHN, C. J., and STONE, OSTRANDER, BIRD, MOORE, STEERE, BROOKE, and FELLOWS, JJ.

W. J. Barnard, of Paw Paw, for appellant. Edward J. Anderson, of Plainwell, and Clare E. Hoffman, of Allegan, for appellee.

that village, each worth about $1,800 or $1,900; one, the older of the two, being free from incumbrances, the other somewhat incumbered. His personal property was limited in amount, and consisted of a few household goods and some paint worth, all told, about $200. He and his wife separated in 1900, she obtaining a divorce. Their only daughter, contestant here, was then about 20 years old, and went with her mother. She, however, visited him and brought and sent him presents and did some housework Shaw and Grace, his wife, made arrangeabout his home. In April of 1910, Harry VIEW-PRESERVATION OF OBJECTIONS. Errors assigned to rulings to which no ob- ments with Mr. Curtis that they should occujection was made, or no objection was made un-py one of his houses, the older one, board til after the testimony was received, are not him, do his washing and mending, he to have available on appeal. his own room and was to pay them $1 per week, in addition to the use of the house. This sum was later increased to $5 per month. He frequently expressed entire satisfaction with the home and care given him by the Shaws, and later told his friends of his intention to leave them the home. On November 21, 1914, Mr. Curtis sent for Mr.

[Ed. Note.-For other cases, see Trial, Cent. Dig. §§ 183, 185.]

1060(1)—ScoPE OF

2. APPEAL AND ERROR REVIEW-HARMLESS ERROR.

In a will contest, where the court would have been justified in withdrawing the question of undue influence from the jury, cross-examination and remarks by proponent's attorney were not prejudicial.

[Ed. Note.-For other cases, see Appeal and Rolland L. Soule, whom he had known for Error, Cent. Dig. § 4135.]

a great many years, and who had been en3. WILLS 155(1)-UNDUE INFLUENCE. gaged in the banking and insurance business Influence to vitiate a will must amount to in Plainwell, and requested him to make his force and coercion, destroying testator's free agency, and the will must be procured by such will. He told him he wanted to give the influence, but the influence need not be physi-house they were living in and his personal For other cases see same topic and KEY-NUMBER in all Key-Numbered Digests and Indexes

[3] Second. Error is assigned upon the instruction of the court upon the question of undue influence; particular stress being laid upon the following excerpt:

"The influence to vitiate this will must have been such as to amount to force and coercion, proof that the will was obtained by this coerdestroying his free agency and there must be cion.".

The court further instructed the jury upon this subject:

"You are further instructed that the undue influence which will defeat a will need not be by physical force, constraint, or coercion, but it must be an influence, either of fraud, artifice, or some other art of human ingenuity and cunordinated the will of the testator, Frank W. ning with an overmastering will, such as subCurtis, to the will of another, so that the alleged will does not show the free will of Frank W. Curtis, but the will and purpose of an

property to Mr. and Mrs. Shaw and his other tion to the court that the jury be instructed house to his daughter, Nellie. Mr. Soule with reference to counsel's remarks or quesprepared the will accordingly, and the same tions. Under the circumstances of this case was duly executed. Mr. Curtis also informed we are convinced no prejudicial error was Mr. Soule that he was fearful that his daugh- committed in this regard. ter might attempt to break the will, and thought it would be a good plan to have a deed to the Shaws of the house and lot executed, and left in a third party's hands to be delivered at his death. The deed was also prepared by Mr. Soule and was executed by Mr. Curtis and was taken away by Mr. Soule, with instructions from Mr. Curtis to deliver to the Shaws at his death. On the 17th of December following, Mr. Soule was again called to the Curtis home and informed by Mr. Curtis that he was not satisfied with the deed not being on record, and that he wanted the deed recorded and wanted a life lease and agreement for his support and care from the Shaws. The life lease and agreement were accordingly prepared and executed, and the deed to the Shaws was then recorded. Mr. Curtis lived until June 11th following, and was cared for by the Shaws. He frequently expressed his entire satisfaction with the care given. After his death the will was offered for probate and contested by the daughter, Nellie, on the grounds of undue influence and mental incapacity. It was admitted to probate in the probate court and its validity sustained on appeal to the circuit court. Contestant brings the case here, and her counsel groups the assignments of error under three heads, viz.: First, errors committed in prejudicial crossexamination and prejudicial remarks made by proponent's counsel; second, errors in charge of the court given sua sponte; third, error in refusing contestant's request to charge as to the burden of proof.

We shall follow the plan outlined by contestant's counsel in his brief and consider the errors assigned in the order named:

other.

*

"You are instructed that, if the will in this case was obtained by kindness amounting in itself to such persuasion as to overcome the will and natural inclinations of the testator, the same would be void and no subsequent act or parol ratification could again make it a valid will."

It is unnecessary to quote further from the charge upon the question of undue influence, as no error was committed in the instructions upon this subject. Maynard v. Vinton, 59 Mich. 140, 26 N. W. 401, 60 Am. Rep. 276; In re Ganun's Estate, supra. The trial court would have been justified in withdrawing this branch of the case from the consideration of the jury; he did not do so, but fairly submitted it. We have examined the other errors assigned upon the charge, and find all of them without merit; the charge was an extremely fair one to the contestant, and she has no cause for complaint.

[4] Third. The contestant requested the court to instruct the jury that the burden of proof upon the question of mental capacity rested with the proponent. The court, however, charged:

"The burden of proof in this case is upon the contestant, Nellie F. Curtis Henry, to show that Frank W. Curtis at the time he executed this instrument was mentally incompetent to make

the same.

[1, 2] First. All of the errors assigned on this branch of the case are not available to the contestant; in some instances no objection at all was made, in others none was made until after the testimony was received; in other instances the trial court sustained the contestant. In some instances the conduct of proponent's attorney was subject to criticism, but this case is by no means a close one. A careful examination of the record satisfied us that the trial court would Error is assigned both upon the refusal have been justified in withdrawing the ques- to instruct and upon the instruction as given. tion of undue influence from the jury. Sev- These assignments of error raise the imporerance v. Severance, 90 Mich. 417, 52 N. W. tant question in the case. The requests were 292; Lamb v. Lippincott, 115 Mich. 611, 73 in accordance with the holdings of this court N. W. 887; Peninsular Trust Co. v. Barker, in numerous cases; among them see Beau116 Mich. 333, 74 N. W. 508; Blackman v. bien v. Cicotte, 8 Mich. 9; Taff v. Hosmer, Andrews, 150 Mich. 322, 114 N. W. 218; In 14 Mich. 309; Aikin v. Weckerly, 19 Mich. re Williams' Estate, 185 Mich. 97, 151 N. W. 482-503; McGinnis v. Kempsey, 27 Mich. 363; 731; In re Ganun's Estate, 174 Mich. 286, Prentis v. Bates, 93 Mich, 234-245, 53 N. W. 140 N. W. 561. The evidence tending to 153, 17 L. R. A. 494; In re Mansbach's Esshow mental incapacity was meager; the tate, 150 Mich. 348, 114 N. W. 65. Unless evidence tending to show mental capacity the rule long established and adhered to by was abundant. Contestant made no sugges- this court as to the burden of proof upon the

question of mental capacity in will cases has only to be dissipated upon the trial by atbeen changed by the recent judicature act, tack; we cannot accede to the view that unthese assignments of error are well taken. der the section above quoted a presumption In actions seeking to set aside deeds on the of mental capacity exists at the beginning of grounds of mental incapacity, the burden the trial, but that at some stage of the prorests with the party assailing the instrument; ceedings that presumption vanishes, and the in actions upon contracts, written instru- burden again shifts back upon the propoments, and negotiable paper, the burden is nent. Such a construction would not only upon him alleging mental incapacity. This do violence to the purpose of the section, jurisdiction had, however, adhered consistent- but would not give force to all the language ly to the rule announced in the earlier de- thereof. The section provides, not only that cisions requiring the proponent in will cases proof of mental capacity shall not be reto establish mental competency by a fair pre- quired in the first instance, but also provides, ponderance of the evidence, and the usual pre- "But the like presumption of mental comsumption of sanity and competency which ob- petency shall obtain as in other cases." In tained in other cases was not sutncient to car- other cases there is a presumption of menry a will case to a jury. That this jurisdiction tal capacity, not only in the first instance, was not in accord with many other jurisdic- at the beginning of the trial, but also at its tions on this question is illustrated by the fol- close. Proceedings for probate of wills by lowing cases cited by Mr. Justice Grant in this section now have the same presumption his dissenting opinion in Prentis v. Bates, of mental capacity that other cases involving supra: McCulloch v. Campbell, 49 Ark. 367, that question have; in other cases the party 5 S. W. 590; Saxon v. Whitaker's Executor, assailing such mental capacity has and must 30 Ala. 237; Pettes v. Bingham, 10 N. H. assume the burden of proof. 514; Perkins v. Perkins, 39 N. H. 163; Rush v. Megee, 36 Ind. 69; Turner v. Cook, 36 Ind. 129; Chandler v. Barrett, 21 La. Ann. 58, 99 Am. Dec. 701; Mullins v. Cottrell, 41 Miss. 316; Fee v. Taylor, 83 Ky. 259; Harris v. Hays, 53 Mo. 96; Taylor v. Creswell, 45 Md. 430; Elkinton v. Brick, 15 Atl. 393; McCoon v. Allen, 17 Atl. 824; Trumbull v. Gibbons, 22 N. J. Law, 155; Meeker v. Boylan, 28 N. J. Law, 274; Blake v. Rourke, 74 Iowa, 519, 38 N. W. 394; Stephenson v. Stephen-1. son, 62 Iowa, 163, 17 N. W. 456; Grubbs v. McDonald, 91 Pa. 236; Egbert v. Egbert, 78 Pa. 326; Thompson v. Kyner, 65 Pa. 368; Carpenter v. Calbert, 83 Ill. 62; Wilbur v. Wilbur, 129 Ill. 392, 21 N. E. 1076; Allen v. Griffin, 69 Wis. 537, 35 N. W. 21; Barnes v. Barnes, 66 Me. 300. We may assume that the commission which framed the judicature act and the Legislature which passed it had this situation in mind. In the chapter on Evidence (see Act 314, Pub. Acts of 1915, c. 17, § 58) it is provided:

"In proceedings for the probate of wills, it shall not be necessary for the proponent in the first instance to introduce any proof to show the competency of the decedent to make a will, but the like presumption of mental competency shall obtain as in other cases."

The power of the Legislature to prescribe upon whom the burden of proof shall rest or to alter the rule announced by the court upon that subject is not denied, but it is vigorously contended that the section above quoted only changes the rule as to the amount of proof required in the first instance to make out a prima facie case, and does not prescribe a rule of presumption that continues throughout the trial. We cannot accede to so narrow a construction. To so hold would be to say that it was the legislative intent that a presumption of mental competency existed at the beginning of the trial,

It follows that the court correctly refused contestant's requests, and correctly instructed the jury as to the burden of proof. The judgment must be and is affirmed.

OGOOSHEVITZ et ux. v. ARNOLD et ux. (No. 141.)

(Supreme Court of Michigan. July 26, 1917.) FRAUDS, STATUTE OF 125(1)—CONTRACTS -SUFFICIENCY OF FORM.

A contract definitely fixing the property, the parties, the price, and the terms of payment complies with the requirements of the statute of frauds.

ute of, Cent. Dig. §§ 275, 276.]
[Ed. Note. For other cases, see Frauds, Stat-

2. SPECIFIC PERFORMANCE 64-CHARACTER
OF CONTRACT-LAND CONTRACT.

PAROL EVIDENCE

A contract providing for the subsequent execution of a land contract may be specifically performed at the order of a court of equity. formance, Cent. Dig. §§ 191-195, 198.] [Ed. Note. For other cases, see Specific Per3. EVIDENCE 397(2) VARYING WRITING-ADMISSIBILITY. Where a contract is complete in itself, unambiguous, certian in its terms, and there is no fraud or mistake alleged, it is error to receive evidence contradicting its provisions, or tending to show that it did not embody all the agreements of the parties.

4. VENDOR AND PURCHASER 133 CONTRACTS-CONSTRUCTION-"CLEAR TITLE."

A contract by which one party agreed to furnish an abstract showing "clear title" to the land involved is not complied with by furnishing a clear title by prescription, or a title not established of record, or one which rests on parol testimony.

[Ed. Note.-For other cases, see Vendor and Purchaser, see Cent. Dig. §§ 234-237.]

5. EXECUTORS AND ADMINISTRATORS 231CLAIMS AGAINST ESTATE PRESUMPTION FROM FILING OF NO CLAIMS.

-

The lapse of time without filing of claim may raise a strong inference that there was no debts against the estate; but, in the absence of a

For other cases see same topic and KEY-NUMBER in all Key-Numbered Digests and Indexes

[Ed. Note.-For other cases, see Specific Per-lansky, and she was nominated and appointformance, Cent. Dig. §§ 17, 18.] 9. SPECIFIC PERFORMANCE