mortgage is of record in the office of the register of deeds of Newaygo county, Michigan."

These instruments were placed on record about the time they were made.

February 12, 1873, complainant, at the request of Worden, who still held the property which had been so conveyed to him, released the 20-acre parcel from the mortgage.

June 20, 1873, Worden deeded the residence, being the village property, to Francis King, who deeded to Susan Price in the following month. July 10, 1876, she deeded to Henry M. Wilcox and Mary E. Wilcox, and each of these grants were made expressly subject to complainant's mortgage.

July 20, 1876, these last-named grantees gave two mortgages on the property; one to Simon Babcock for $2,151.67, and the other to Daniel Lord for $1,671.13, and both remain. On the first of August, following, Henry M. Wilcox quitclaimed to his co-owner, Mary E. Wilcox.

December 21, 1574, and during Mrs. Price's ownership of the Newaygo property, complainant quitclaimed the Worden farm to one Pratt, subject to the Dows mortgage, and it was expressed in the deed that $3,000, and interest at 7 per cent. from January 1, 1873, was claimed to be due on it, and that, as between complainant and Pratt, the latter assumed that sum, or whatever should become due, and that the same was part of the purchase price.

It appears that Worden paid the interest on $2,000 of the Dows mortgage for the half year following July 1, 1872, and that since his purchase in December, 1874, Pratt has kept down the interest agreeably to his contract with complainant ; but the mortgage has never been paid, and no proceedings have ever been taken to enforce it.

In the forepart of 1877 complainant filed this bill to foreclose, in his name and in his behalf, the mortgage so made by Worden, and claiming that, in truth, the main design and effect of the transaction was to secure to him the difference between the interest he received from Worden and the interest he granted, and that the end was left to be effectuated through payment by Worden on the Dows mortgage, if seasonably made; but if not, then, as a necessary consequence, by payment to himself.

The defendants, Mary E. Wilcox, Susan Price, and Lord and Babcock, appeared and answered. The circuit court decreed for complainant, and all the defendants acquiesced except Babcock, who appealed.

The chief defence is that the mortgage is one merely of indemnity, and that Stewart has never been damnified within the sense of the condition. But further claims are asserted which are not fully covered thereby. It is said that complainant's case shows that the $2,000 and interest were to be paid on the Dows mortgage and not to complainant, and that Worden could at any time have paid the money on that and thereby have filled his obligation.

Again it is said that, having sold the farm encumbered by the Dows mortgage to Pratt, whatever right complainant had under the Worden mortgage passed to Pratt, and that complainant ceased to have any interest in the payment of the Dows mortgage, and lost all interest he may have had in the Worden mortgage; that Pratt acquired such a relation and interest as made him a necessary party, and that it was error to allow interest from January 1, 1873, inasmuch as Prati had already paid that directly on the Dows mortgage.

The condition of complainant's mortgage is not clear, and so far as necessary the court is authorized to construe it most favorably for him as mortgagee. Jerome v. Hopkins, 2 Mich.

97.

It was given at the same time with the deeds, and as one of the writings necessary to perfect and complete the exchange of properties, and hence the three are to be read together to explain the intention. Bronson v. Green, Walker's Ch. 56; Norris v. Hill, 1 Mich. 202; Dudgeon v. Haggart, 17 Mich. 275; Foubl. B. 1, c. 6, § 14. And in order that the court may see just how the transaction came about and received the shape it actually bears, a reference is proper to the surrounding facts. Grant v. Merchants' & M. Bank of Detroit, 35 Mich. 515; Paddock v. Pardee, 1 Mich. 421; Norris v. Show2 Doug. 16; Facey v. Otis, 11 Mich. 213; Hunter v. New York, etc. Salt Co. 14 Mich. 98; Phillips v. Raymond, 17 Mich. 287.

erman,

There is no requirement to adhere to the literal terms in derogation of the interior sense of the transaction.

Equity regards substance rather than form, and asserts and enforces the end actually aimed at if lawful and just.

Foubl. B. 1, c. 6, §§ 9, 18; Kimball v. Myers, 21 Mich. 276; Thornton v. Prentiss, 1 Mich. 193; Dye v. Mann, 10 Mich. 291; Butler v. Ladue, 12 Mich. 173; Hurd v. Robinson, 11 Ohio St. 232; Reid v. Sycks, 27 Ohio St. 285; Popple v. Day, 123 Mass. 520.

The circumstances are strong to show that the cause of the

arrangement for Worden to reduce the Dows mortgage $2,000 was to equalize the exchange and give Stuart an interest of the same value as that of the interest he conveyed.

Worden was not in a situation at the time to make up the difference of $2,000 by paying over the money, and Stuart was willing that the end should be attained by an enlargement of his interest in the farm, if effected in "due season, and it was felt that it could be done in that way by payment made directly on the Dows mortgage.

It was the design that it should certainly he paid sooner or later, and not that it should eventually lapse to Worden or his grantees, either as a gratuity or a forfeiture, and the implication is unavoidable that it was to be paid directly to complainant if not paid to him indirectly through payment in "due season" on the Dows mortgage.

As Worden was not a party to that mortgage, or in any way liable for the debt secured by it, his agreement with Stuart could not avail anything to Dows who was a stranger thereto. Turner v. McCarty, 22 Mich. 265; Daniels v. Eisenlord, 10 Mich. 454; Vrooman v. Turner, 69 N. Y. 280.

Stuart was the party to be benefited, and his benefit was not to be contined to a mere indemnity against an encumbrancer of unlimited duration.

He believed an extension of the time had been fixed by positive agreement, and the purpose was to require payment of the $2,000 in "due season, or in other words whenever Dows could lawfully call for it. He was deceived. Worden had secured no extension and in fact the money was subject to be demanded at once. It was already "due season."

Worden neglected to pay anything, and in the fall of 1874 Dows threatened Stuart with foreclosure. The latter thereupon made terms with Pratt and quitclaimed to him.

As the pay-day was not postponed at all, and Dows had the right to call for the money at the time the mortgage was given, and the arrangement to permit Worden to obtain further extension only contemplated a renewed extension, which was impossible, because none whatever had been made to be renewed, the $2,000 was immediately due at Stuart's election. The various circumstances conduct to this conclusion, and the papers are quite reconcilable with it.

The condition calls for payment and not merely for indemnity. It is true that payment to complainant is not expressed in terms. But it is not only negatived; it is justly implied,

as before stated, as the natural alternative after failure to pay him through payment on the mortgage.

This case more easily bears out this construction than do several of the cases cited bear out the construction there applied with confidence.

The other points suggested are not persuasive. Complainant's right to the $2,000 under the Worden mortgage was fixed, and the terms of the quitclaim to Pratt are full to show that complainant did not part with it or confer on Pratt any claim to it.

Pratt agreed with complainant to take care of the Dows mortgage as so much of the purchase price, and whatever he has paid has been paid at complainant's cost, and in his stead, and not in the interest of defendants.

The result is that the decree should be affirmed, with costs. (The other justices concurred.)

ALEXANDER D. FRASER and others vs. WILLIAM JENNISON and

others.

Filed November 29, 1879.

A will was sought to be contested for want of mental capacity in testator. Evidence was offered that he was a man careful, prompt, and particular in the payment of debts, but that, notwithstanding this, two of those named as trustees in his will had presented large claims against the estate for services rendered him. Held, immaterial. Expressions of regret of a testator as to having made a certain bequest are not evidence of a want of mental capacity. Where one of the subscribing witnesses to a will was not called as a witness at the time the other subscribing witnesses were examined, but subsequent to evidence being introduced by the contestants, they having full opportunity to cross-examine, held, that they were presumably not prejudiced thereby. Question of undue influence in this case, and evidence in connection therewith, held, properly excluded. Ruling of the court limiting the number of experts called to testify as to the mental condition of the testator to five in number, held proper. The provisions of section 5943, Comp. Laws, prohibiting a physician from disclosing information obtained in his professional capacity, is a privilege for the protection of the patient, and may be waived by him or his representatives. Certain letters written by the testator more than a quarter of a century previous, showing the existence of friendly relations between testator and his brother, who had died 20 years before the testator, and whose descendants were not named in the will. held, properly excluded; and certain letters that were admitted held to have been iminaterial and not prejudicial. Certain testimony offered to establish want of mental capacity criticised. The character and effect of expert testimony, of want of mental capacity in will cases, discussed. Mere mental disorder or weakness is not sufficient to authorize the refusal of probate of a will for want of mental capacity of the testator, when it appears that it is not of such a character as to render the testator incapable of acting rationally in the ordinary affairs of life, and has not mani

fested itself in the testamentary provisions made. Certain errors in receiving and rejecting testimony considered, and held not to work substantial injury to appellant, and not ground for reversal. Instructions given held sufficient, and to cover the proper requests presented.—ED.

Error to Wayne.

Levi I. Griffin and H. M. Duffield, for plaintiffs in error. Wm. Jennison and W. A. Moore, for defendants in error. COOLEY, J. This case involves the validity of the will of the late Alexander D. Fraser, of Detroit, one of the oldest and best known members of the Michigan bar. The will bears date May 17, 1877. It was proved and allowed in the probate court for the county of Wayne, and an appeal was taken from that allowance to the circuit court. A copy of the will is given in the margin.* The decedent was upwards of eighty-three years of age at the time the will was made. The proponents of the will are special administrators on the estate, appointed by the Wayne probate court, and the contestants are children of Peter Fraser, a brother of the deceased, who, with others, constitute his heirs at law. By their pleading the contestants set up the following defences:

*In the name of God, Amen. I, Alexander D. Fraser, of the city of Detroit, state of Michigan, counselor at law, do make and declare this my last will and testiment, in manner and form following:

I resign my soul into the hands of Almighty God, hoping and believing in a remission of my sins by the merit and mediation of Jesus Christ, and my worldly estate I give, devise, and bequeath as follows:

1. I give and bequeath unto my nieces, Margaret Davidson and Isabella Davidson, both of Inverness, Scotland, and to the survivors of them, the sum of $4,000, the interest of which shall be quarterly or semi-annually transmitted by my executors or trustees to them, as has been heretofore done by me. This sum I estimate to be about the amount in which I am now indebted to them for moneys to which they succeed through their mother's last will and testament, and which sum, therefore, I bequeath to them in full payment and discharge thereof, and on that condition. The amount transmitted to me heretofore, quarterly or semi-annually, has been 20 or 40 pounds sterling, and should the interest accruing from said sum be inadequate to pay the premium of such amount, the residue may be paid from my estate. I enjoin upon my trustees or executors to be prompt and punctual in the transmission of this annuity.

2. I give and bequeath to another niece, Ann Munroe, of Inverness aforesaid, for her own use and benefit, and excluding the jus mariti, the sum of $500.

3. I give and bequeath to Mrs. Octavia Seymour, of Detroit, the sum of $1,000, in consideration of her constant attention and kindness to me during my illness.

4. I give and bequeath to William Adair and John Pettie, of Detroit, in trust for the St. Andrew's Society of Detroit, the sum of $500, which shall be permanently invested by said society when it shall have become duly incorporated under the laws of this state, the interest of which shall be regularly drawn and added to the benevolent fund of the society, and appropriated in all future time to the relief of any of the natives of Scot