by George D. Van Dyke, of Milwaukee, who, at the time of such purchase, required such defendant company to purchase certain outstanding tax titles against the land, and at the same time Mrs. Sawyer made two other deeds to the Breen Iron Company of the same character as those made by her January 24, 1902. The remainder of the stock was held by Thomas Breen, one of the original incorporators of the Breen Mining Company.

After Van Dyke acquired a controlling interest in the Breen Iron Company, he and those associated with him became officers and directors, and caused the said company to execute a mining lease of this property to the Mineral Mining Company, an operating corporation, organized by Van Dyke and his associates, of which they were also officers and directors. Under this lease, the term of which does not appear, the Mineral Mining Company has operated upon this property in explorations for and mining of iron ore, which operations still continue.

Many facts and circumstances which appear in the record necessarily have been omitted from this statement of facts. An endeavor has been made to eliminate everything which is not closely connected with the questions which must be considered in disposing of the case.

The contention of complainants and appellants is that they are entitled to be determined the owners of a one-fifth of the property which defendant Breen Iron Company acquired through the conveyances from Mrs. Sawyer and all proceeds therefrom; that the attempted sale of their one-fifth interest in and to all of the property of the Breen Mining Company to defendant Breen Iron Company was never accomplished.

In the brief of complainants it is stated:

"This suit relates to the $100,000 of stock owned

by Salmon P. Saxton in the said Breen Mining Company at the time of his death and the interest which such stock represented in the said 120 acres of land and the mineral therein."

The 4,000 shares of stock of the par value of $100,000 referred to in this excerpt from complainants' brief is the original stock issued to Salmon P. Saxton.

Complainants' contention in this case is that the will of Mr. Saxton disposed of his entire estate, real and personal. Defendant Breen Mining Company insists that, as to his personal estate, Mr. Saxton died intestate. He died February 5, 1898. His will reads as follows:

"I, Salmon P. Saxton, of the town of Waucedah, county of Dickinson, State of Michigan, being of sound mind and memory, do make, publish and declare this, my last will and testament hereby revoking all former wills, bequests and devises by me made.

"1. It is my will that all of my just debts, funeral expenses and all charges be paid out of my personal property.

"2. I give and bequeath to Jessie Gates, one ladies' gold watch, she having same in her possession at this date, also one seed wreath and gilt frame. To Floy Gates, one landscape painting and gilt frame. To Murray Gates, one hair wreath and gilt frame, the above gifts and bequests to become their absolute property on arrival at legal age.

"3. I give and devise to my daughter, Mrs. Frankie E. Gates, for the purposes of and conditions hereinafter written, all of my real estate of every description whatever, of which I may be possessed of at my death for her use and benefit during her life time, and at her death to be then divided equally between her heirs.

"4. I do hereby constitute and appoint Omer Huff, of Florence, county of Florence, State of Wisconsin, and Robert C. Henderson, of Norway, county of Dickinson, State of Michigan, as executors of this my last will and testament.

"In witness whereof, I have hereunto set my hand and seal this 13th day of July, 1895.

"SALMON P. SAXTON. [Seal.]"

The will was duly and regularly published, and attested by two witnesses. It was admitted to probate April 2, 1898, and the executors named therein were ordered to furnish a bond in the sum of $1,000. From the copy of the will given above, it appears that no disposition, in terms, was made of personal estate, although the testator at the time was possessed of such estate to a considerable amount, a large portion of which consisted of the 4,000 shares of stock of the Breen Mining Company of the face value of $100,000. The only reference in the will to personal estate is in the first paragraph:

"1. It is my will that all of my just debts, funeral expenses and all charges be paid out of my personal property."

No debts were proved against his estate, and the only testimony in the case upon the subject indicates that there were no debts. The funeral expenses were paid by one of the men named in the will as executors.

As already stated, counsel for defendant Breen Iron Company contend that this will made no disposition of testator's personal estate. We do not consider it necessary for this court to construe this will at this time. For the purposes of this case, this contention of defendants' counsel may be accepted.

Defendant Breen Iron Company, to support its claim that the interests of complainants in the capital stock, assets, and property of the Breen Mining Company were acquired by it, relies principally upon the proxy signed by Huff and Henderson, the persons named as executors, and also upon the letter written by Henderson to secretary Sawyer accepting the plan for organizing a new corporation and directing him to so vote. It therefore becomes necessary to deter

mine the status of these men in their relation to the estate of Salmon P. Saxton, deceased. They were named as executors by the testator in his will. The certificate of the probate of the will shows that it was presented to the probate court for Dickinson county on the petition of Robert C. Henderson for its probate and on April 2, 1898, was admitted to probate. Upon the hearing of this cause, the record shows that complainants' solicitor offered in evidence a letter written by the probate judge of Dickinson county to him August 19, 1908, which contained an abstract of the probate calendar, showing all proceedings which had been taken in the matter of the estate of Salmon P. Saxton, deceased. Counsel for Breen Iron Company, who had a copy of these proceedings, said:

"So much of this letter or statement as purports to be a copy of the probate calendar we will not object to it. It is a letter from the judge of probate which was authorized, and, so far as it gives the proceedings and the date of these proceedings, we consent it may be read into the record."

The letter was then read in evidence as follows:

"Complying with your request of August 17th, I send you herewith copy of will and abstract of probate calendar, etc., of Salmon P. Saxton, deceased. Last will filed February 15, 1898, and consent of Omer Huff to act as executor filed February 15, 1898. Petition for probate of will filed February 15, 1898. Order for probate of will filed February 15, 1898. Proof of publication filed March 21, 1898. Proof of probate of will filed April 2, 1898. Certificate of probate of will filed April 2, 1898. Bond of executors filed April 2, 1898. Notice of claims to be heard by the court filed April 2, 1898. These are all the papers filed in this estate. The bond is executed by Omer Huff and Robert C. Henderson, as principals, and Edwin N. Kreamer and Richard C. Browning, as sureties."

The foregoing are all the proceedings that were ever had in probate court in the Saxton estate up to August 19, 1908, the date of this letter written by the probate judge. No letters testamentary were ever issued; no inventory and appraisal was ever made and filed; nor were any of the other proceedings had which are usual and necessary in the regular administration of estates in probate courts.

The record fails to show any action by the two men Huff and Henderson as executors of the estate of Salmon P. Saxton, excepting only that relied upon by defendant Breen Iron Company in this case. It does not appear that they entered upon the discharge of the duties of executors of the estate, or that the estate was ever administered.

It follows that the voluminous correspondence, which occupies a large portion of this record, between Mr. Sawyer, the secretary of the Breen Mining Company, and these two men, and all the testimony in the record relative to options given by them for mining leases and the sale of the property of the Breen Mining Company, as well as proxies given to the secretary of the company, and letters to act for them in the sale of its property by deed to Mrs. Sawyer, and the organization of the defendant Breen Iron Company, all done by them purporting to be executors of the estate of Salmon P. Saxton, deceased, as tending to show a disposition of the capital stock and property of the Breen Iron Company belonging to the estate of Salmon P. Saxton, deceased, cannot be considered by this court, and this court must hold that any acts and doings of these men purporting to sell and dispose of the interest of complainants, the heirs of deceased, in and to the Breen Mining Company, as such executors, were null and void and of no force or effect.

The sale of the property of the Breen Mining Company to defendant Breen Iron Company in its entirety is challenged by the solicitor for complainants as hav