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The judge passed upon the claim for goods should die, leaving issue at the time of distribu

tion, such issue should take the share of their sold and delivered, and denied it as not prov

deceased parent. Held, that the children of W. ed; there being no delivery. He then dealt

were entitled to share equally with the children with the question of damages for nonper of the brothers and sisters of deceased on like formance, and denied those. The proceed terms. ing was in equity, and, having treated the Appeal from Circuit Court, Jackson Counstatement of claim as sufficient to admit ty, in Chancery ; James A. Parkinson, Judge. proof of the refusal to perform and heard Bill by Mary H. Gaskill and others against proof which supported it, the judge evidently | Eugene J. Weeks and others for an accounttreated that view of the case as a subject ing, and for construction of the will of Chesfor decision. If he erred, the remedy was in ter Warriner, deceased. Decree for defenda direct proceeding. We cannot say that ) ants, and complainants appeal. Modified and he was without jurisdiction, and we cannot affirmed. be asked to inquire whether the pleading, if Argued before GRANT, C. J., and BLAIR, called such, justified his inquiry. A similar MONTGOMERY, CARPENTER, and McALquestion arose in Kellogg v. Thompson's Es VAY, JJ. tate, 115 Mich. 621, 73 N. W. 893, where it

D. P. Sagendorph, for appellants. Wilson was held that the inadequacy of pleadings

& Cobb, for appellees. in the former suit was not an answer to the claim of “former adjudication." See, also,

MCALVAY, J. The bill of complaint in Reid, Murdoch & Co. v. Parks, 122 Mich. 361,

this cause was filed for an accounting, and 81 N. W. 252.

for construction of the will of Chester WarBeing constrained to hold that the present

riner, deceased. Complainants are the sur. claim was one provable before the federal

viving heirs of deceased, entitled under his court, that proof was made tending to prove

will to share in the distribution of his esit, and, the question considered and decided,

tate. The principal defendants, Eugene J. we have no alternative but to reverse the

Weeks, Chas. C. Bloomfield, and Thomas A. judgment. A new trial is ordered.

Wilson, were named as executors in the will, and qualified as such. They have administered the estate and are called upon as trus

tees to account for all assets belonging to GASKILL et al. v. WEEKS et al.

said estate which have come into their hands. (Supreme Court of Michigan. Sept. 15, 1908.) From an adverse decree of the circuit court 1. EXECUTORS AND ADMINISTRATORS - AC- of Jackson county, the terms of which will COUNTING-INTEREST IN MERCANTILE FIRM. |

be stated later, complainants have appealed. Where testator, at the time of his death, owned an interest in a mercantile firm wh

The facts necessary to be stated are as continued for some time thereafter, the execu

follows: Chester Warriner died at Jackson, tors, having accounted for the property which Mich., October 7, 1886, leaving a widow, but came into their hands, and administered the

no children. He died testate. His will is as estate with care and economy, were not chargeable with what they received at the inventory

follows: figures.

"I, Chester Warriner of the city of Jack2. PARTNERSHIP - DISSOLUTION OF FIRJ son and state of Michigan, do hereby make

DEATH OF PARTNER-RIGHTS OF SURVIVING and publish this my last will and testament
PARTNER.
On the dissolution of a firm by the death

thereby intending to dispose of all my worldof one of the partners, the survivor is entitled ly estate of which I shall be possessed at the under the law to continue the business and use time of my demise. I direct that all my just his best judgment in winding it up.

debts including funeral expenses and expens(Ed. Note.-For cases in point, see Cent. Dig. vol. 38, Partnership, $ 511.]

es of administration be paid out of my estate.

The residue and remainder of my estate, both 3. EXECUTORS AND ADMINISTRATORS – SERV

real and personal, I devise and bequeath to ICES OF EXECUTORS-ALLOWANCE.

Where a surviving partner was the executor Eugene J. Weeks, Charles C. Bloomfield, and of his deceased partner, and, after dissolution of Thomas A. Wilson, my executors, hereinafter the firm, continued to use his partner's capital

named in trust for the following purposes: in the business without interest, and such share of the capital paid its share of all the expenses

"First. To my wife, Lucy Jane Warriner, of the business, including a portion of the salary during her natural life the net income of my of such executor while managing the business,

estate and in case such income shall not be the executor was not entitled to an additional allowance for his services as executor, which

sufficient to suitably support her to use and were perfunctory.

appropriate sufficient of the principal of my (Ed. Note.-For cases in point, see Cent. Dig. estate for that purpose. vol. 22, Executors and Administrators, 88 2117

“Second. After the death of my wife and 2124.)

the payment of her funeral expenses to con4. WILLS--CONSTRUCTION.

vert my remaining estate into money and diTestator bequeathed the residue of his estate to his executors in trust, to pay the income

vide the same between all the children of my and so much of the principal as is necessary to brothers and sisters and Eugene J. Weeks his widow for life, and, at her death, to divide

then living share and share alike, and in the balance between all the children of testator's brothers and sisters and W. then living, share

case any of said children shall die leaving and share alike, and in case any of the children | issue living at the time of the distribution of my estate such issue shall take the share , and Weeks, the survivor, was also entitled of their deceased parent.

by law to continue the business, and use his “I hereby appoint Eugene J. Weeks, Charles | best judgment in winding it up. We do not C. Bloomfield and Thomas A. Wilson, execu- find that continuing this business has defeattors of this my last will and testament and ed the estate. The allowance to the widow revoke all other wills by me at any time during her lifetime was a reasonable one, made.

and there is no dispute in the record but "In witness whereof I have hereto set iny that it was paid as claimed in the account. hand this first day of July, A. D. 1884.

From our examination of this account, we “Chester Warriner. are satisfied that the court arrived at the "Signed by the testator, Chester Warriner, correct amount due the estate and in the as and for his last will and testament in the hands of the executors, using the books kept presence of us, who, at his request, in his by defendants as the basis of such accounting. sight and presence and in the presence of We do not agree with the allowance made each other, have subscribed our names as to defendant Weeks for services. He drew attesting witnesses this first day of July, A. a salary while managing the business. He D. 1884.

was a partner, conducting this business, and "Eugene J. Weeks, Jackson, Michigan. had the use of this property without interest. "Thomas A. Wilson, Jackson, Michigan." I It paid its share of all the expenses of the

The executors made and filed an inventory business, and the services of the executors of the estate, real and personal, and an ap were perfunctory. Such allowance was not praisement of all the property, amounting to warranted by the facts. Whether the circuit $21,155.43. They proceeded under the will to court had authority to make it we need not administer the estate. At the time of his determine in this case. death testator among other property owned Our construction of the second paragraph a one-third interest in the firm of Weeks, of the will of Chester Warriner is that the Latimer & Co., conducting a drug business, children of Eugene J. Weeks are to share which interest was appraised at $3,383.47. equally with the children of the brothers and The partner Latimer had a contract with sisters of deceased, and on like terms with the firm for a term of years, by which he was them. We do not agree with the court that entitled to manage the business, and, in case the amount admitted to be in the hands of of death of a partner, the business was to these defendants is admitted as a matter continue for that period. He continued the of grace to this estate and those entitled to business until his death one year later. Dur- it, or that by any proper system of stating ing this time decedent's interest remained in this account the estate can be said to be inthe business. After Latimer's death, the debted to defendants. Their admissions foresurviving partner Weeks (one of the execu close any discussion of the matter. Nor do tors) continued the business as Weeks & Co., we agree that any heir or person is entitled keeping the interest of the estate in the busi- to a share of this estate because he accepts ness. A corporation was organized later, or rejects the actions of defendants in conwhich, in fact, continued this business, and ducting the business as was done by them. of which a certain amount of stock was issued The law determines who is vested with an to the Warriner estate. Afterwards a stock | interest in an estate, and from the facts the dividend was declared when more stock was courts determine as near as may be the issued to the estate. The record contains an amount of an estate. It is a fact that comextended statement of receipts and disburse- plainants' solicitor refused to accept the acments made by the executors during the years counting of defendants, although asked to do of administration of this estate, and a large so by the court. Complainants are entitled amount of testimony material to the issue. to share in this estate according to the terms We do not think that an abstract of these of the will. The amount to be divided and accounts and this testimony would be of bene- distributed among these parties in interest is fit to the profession. We find that the con the sum of $10,666.65, with interest at 5 per tentions of complainants are not supported cent. per annum with annual rests from and by the proofs that to charge the executor after June 30, 1901. This does not include with what they received at the inventory | the cemetery lot and improvements thereon. figures would work an injustice. They have The decree of the circuit court will be modaccounted for the property which came into | ified in accordance with the foregoing opintheir hands, and the record shows that they ion. The costs and solicitor's fees as fixed have administered the estate with care and by the circuit court are affirmed to complaineconomy. The partner Latimer was entitled ant, together with costs of this court to be to continue the business under his contract, / taxed.

| tion what the registration lists are to the genBRADLEY v. BOARD OF STATE CAN eral election, and it is supposed that no one VASSERS.

will vote at either election, unless there is found

or is presently made record evidence of his WARNER v. SAME.

right to vote, which record cannot be review(Supreme Court of Michigan. Sept. 28, 1908.) ed or changed for the purpose of affecting the 1. MANDAMUS-STATE BOARD OF CANVASSERS

count of the votes actually cast. -PRIMARY ELECTIONS.

8. SAME. Though the board of state canvassers is a Under Laws Ex. Sess. 1907, p. 10, No. 4, constitutional body, yet, when canvassing the

regulating primary elections, the party enrollvotes at a primary election held under Laws | ment is not the basis for determining the fact Ex. Sess. 1907, p. 10, No. 4, providing for that a candidate has received the required per primary elections, it performs statutory duties

cent. of lawful votes cast at a primary elecof private and public interest, and not political

tion, but that fact must be determined by the duties merely, and the courts may restrain the board of state canvassers from the returns where board by mandamus from exceeding the powers

no recount is demanded, and, in the absence of conferred on it.

a contest between candidates, no recourse will [Ed. Note. For cases in point, see Cent. Dig.

be made by the board to the record of enroll

ment. vol. 33, Mandamus, § 154.]

McAlvay, J., dissenting. 2. PROHIBITION-STATE BOARD OF CANVASS

. EBS-PRIMARY ELECTIONS,

Mandamus by James B. Bradley against Acts of the state board of canvassers in

the board of state canvassers, and mandamus canvassing the votes of a primary election held under Laws Ex. Sess. 1907, p. 10, No. 4, being

and probibition by Fred M. Warner against the mere performance of statutory duties, may the board of state canvassers. The writ apbe restrained by prohibition.

plied for by James B. Bradley denied, and 3. ELECTIONS-PRIMARY ELECTIONS-CANVASS

writs applied for by Fred M. Warner granted. ING OF VOTES.

Laws Ex. Sess. 1907, p. 10, No. 4, regu Argued before GRANT, C. J., and BLAIR, lating primary elections, and declaring that any MONTGOMERY, OSTRANDER, HOOKER, candidate "aggrieved on account of fraud or MOORE, CARPENTER, and MCALVAY, JJ. error by the board of primary election inspectors, in the count of the votes cast, or the

Watts S. Humphrey, George W. Weadock, returns made," may ask for a recount of the and Charles W. Nichols, for relator Bradley. votes, and the board of state canvassers shall open the ballot boxes and make a recount there

Otto Kirchner, Alex. J. Groesbeck, and Fred of, etc., authorizes the board to do no more C. Wetmore, for relator Warner. John E. than recount the votes and declare the result Bird, Atty. Gen. (Henry E. Chase and Thomas in accordance with such count, and it cannot

Ambrose Lawler, of counsel), for respondent. compare the poll list and the enrollment book prepared under the act to ascertain whether persons whose names appear on the poll list were OSTRANDER, J. Under the provisions of enrolled as voters of a political party, nor can

section 41 of Act No. 4, p. 30, of the Extra it draw ballots from the ballot boxes merely because it appears that one not enrolled as a

Session of 1907, a recount of the votes cast voter, or as a voter of one political party voted in certain election precincts of the state at for the candidates of such party.

the primary election held in the state on Sep4. CONSTITUTIONAL LAW – STATUTES — CON

tember 1, 1908, was demanded by James B. STRUCTION IN FAVOR OF VALIDITY.

Bradley, a candidate at said election for nomCourts will decline to nullify a statute by construction, unless the duty so to do is clear.

ination to the office of governor on the Repub[Ed. Note.-For cases in point, see Cent. Dig. lican ticket. One of his opponents, Fred M. vol. 10, Constitutional Law, $ 46; vol. 44, Warner, thereafter demanded a recount of Statutes, $ 56.]

the votes cast at said election in other desig5. MANDAMUS-STATE BOARD OF CANVASSERS

nated election precincts. Apparently each of — PRIMARY ELECTIONS -- MINISTERIAL DU

these gentlemen received more than 40 per TIES.

The powers conferred by Laws Ex, Sess. cent. of the votes cast at said election by Re1907, p. 10, No. 4, providing for primary elec publican voters for candidates for said office. tions, on the board of state canvassers, in can

Each claims to have received, if only legal vassing the votes and recounting them on petition therefor, are ministerial, and not judicial;

votes are counted, a plurality of votes. Such and the board may be controlled by mandamus proceedings were had by the board of state and prohibition.

canvassers that a recount of ballots in the [Ed. Note.-For cases in point, see Cent. Dig.

designated precincts was entered , upon and vol. 33, Mandamus, § 154.]

proceeded to a point where said board made 6. PROHIBITION-STATE BOARD OF CANVASSERS-PRIMARY ELECTIONS-MINISTERIAL DU

certain rulings with respect to its powers in TIES.

the premises and the manner of conducting The duties imposed on the board of state said recount, which rulings were opposed to canvassers by Laws Ex. Sess, 1907, p. 10, No.

the contentions of both of said petitioners. 4, in canvassing the votes at a primary election and recounting them on petition therefor,

The relator, James B. Bradley, thereupon pebeing merely ministerial, the board may be re titioned this court for a writ of mandamus to strained by prohibition from exceeding its juris compel said board of state canvassers to prodiction.

ceed with said recount in accordance with 7. ELECTIONS-PRIMARY ELECTIONS-ENROLLMENT BOOKS.

the contention of relator, and the relator Fred Under Laws Ex. Sess. 1907, p. 10, No. 4, M. Warner petitioned this court for an order regulating primary elections, and providing that prohibiting a recount in accordance with the the voters of the political parties shall be afford

ruling of said board, and for a writ of maned an opportunity to become enrolled voters of ihe party with which they are affiliated, etc.,

damus commanding the board to proceed with the enrollment books are to the primary elec- | the recount in accordance with the contention

117 N.W.-4142

of said relator. Both relators are therefore, be incumbent upon him to state to the Inspecpersons who claim to have acquired rights un- tor who has the ballots in charge, the party der and by virtue of the operations of the ballot he desires, which, if he is enrolled as a law in question, and both have submitted the member of the party represented by said balmatters in issue to the judgment of this court. lot, and if his right thereto is not challenged, To each of these petitions the respondent board shall be delivered to him forthwith. Any of state canvassers has made answer, and has voter enrolled as a member of any political asserted, among other things, in answer to | party for which no ballots have been prethe petition of relator Bradley: “That the pared, shall not be permitted to vote any othboard of state canvassers is invested with the er party ballot at such primary election. It power and authority to finally determine shall be competent for any enrolled voter or whether as a board of state canvassers or as primary election inspector present to chala recount board who was elected as a party lenge the right of any one offering to vote, on candidate for the office of governor; that, be. the ground that he is not a legal voter in ing charged with such duty, its determination that precinct, or that he belongs to a political as to means employed or the method to be party other than that represented by the balpursued are not matters which are subject to lot for which he has asked. When the right the review of any other tribunal, but that the of any enrolled voter to a ballot is challenged said primary election law being enacted for he shall be required to take and subscribe an the purpose of taking the place of a conven oath that he is a qualified enrolled voter and tion for the nomination of party candidates has the qualifications of a voter and that he for office and the only right of either candi believes in the principles of the political pardate at this time under this recount being to ty represented by the ballot for which he has have a correct and accurate recount of the asked. * * * said ballots in question made, and this right “Sec. 36. The enrolled voter after having not being in the nature of a franchise or of received his ballot, shall enter a booth, and fice, and the said board of state canvassers while there concealed from view prepare such having determined to employ the same means ballot by making a cross in the square at the to make the recount of the ballots in ques left of the names of such candidates as he tion that were open to the board of election may desire to vote for, but in no case for more inspectors in counting the ballots, the said candidates for any office than is indicated unboard of state canvassers is acting within the der the title of such office. He may, however, language of the statute, and its determination vote for any person whose name is not printis final and conclusive on all parties, and is ed on the ballot by inserting such other name not open to question or review.".

in such manner as shall make it a substitute It is necessary to a correct understanding for any name which is printed thereon or of the questions presented that a somewhat where no candidate's name appears upon the extended reference be made to the statute. It ballot. He shall then fold the ballot so that is entitled: "An act relative to the nomination the perforated corner having within ballot of party candidates for public office, and dele number shall be on the outside, and present it gates to political conventions; to regulate to the proper inspector, who shall tear off the primary elections and to prescribe penalties number and deposit the ballot in the ballot for violation of its provisions." Approaching box. When an enrolled voter asks for a baldirectly those provisions with which we are lot the inspector shall enter his name upon concerned, we find, first, that the provisions the poll list, the name of the political party of the general election laws, applicable and and the number of his ballot, before the same not changed by provisions of the act in ques is given to voter, and the inspector receiving tion, are adopted, by reference or otherwise, the ballot shall, before depositing it in the as governing the actions of those who, in the box, ascertain by comparison with the poll first instance, have official relations with the list whether it is the same ballot given to ballots, the election, and the counting and re such voter, and if it is not the same ballot turn of votes. No one but an enrolled voter he shall reject it and such voter shall not be is by law permitted to vote at any primary allowed to vote at such primary election. If election, and the method to be pursued by one any enrolled voter shall, after marking his desiring to be enrolled is specifically set out. ballot, so expose it to any person as to reveal Enrolled voters belonging to one political par the name of any candidate voted for thereon, ty may not lawfully vote for the candidates | such ballot shall be rejected and such enof a different political party. The names of rolled voter shall forfeit the right to vote at enrolled voters are recorded in an enrollment such primary election, and a brief minute of book, which, in most respects, in a primary such occurrence shall be made in the enrollelection answers the purposes of a registra ment book and upon the poll list opposite the tion list in a general election.

name of such enrolled voter. Challengers ap"Sec. 35. After the polls are open at a pointed by the several political parties shall primary election, any elector who is legally be allowed to be present with the same powqualified and enrolled as hereinbefore provid ers as are provided by law for general eleced, shall, before entering the booth, be fur- tions. nished a ballot of the political party with “Sec. 37. After the closing of the polls on which he is enrolled, and no other. It shall the day of holding of any primary election,

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the ballots shall be counted as provided by | The Secretary of State shall appoint a meetlaw for the counting of the ballots of any | ing of the board of state canvassers at his regular election. In counting such ballots office not later than twenty days after the only those candidates for nomination to of primary election, wbich date shall be certifice who have a cross made in the square fied to the chairman of the State Central at the left of their names shall be deemed Committee of each political party, for the to have been voted for, and any ballot upon purpose of canvassing the votes of the canwhich more candidates for any office have didates for such office. The said board shall been voted for than may, by law, be elected proceed in the same manner in canvassing to such office, shall be rejected as to all the votes, certifying, recording and deternames appearing for that office. The re mining results, etc., for nomination for Unitquired number of electors who receive the ed States Senator and Governor and Lieutenhighest number of votes for delegates to the ant Governor as is done in canvassing the county convention of any political party shall votes in the case of election of state officials. be declared by the board of primary election In canvassing the votes of candidates for inspectors to be elected. Said board shall members of Congress, State Senators and certify to the county clerk the names of the Representatives in the Legislature, in diselectors so elected as delegates, naming the tricts composed of more than one county, said political party upon whose ballots such elec- board shall proceed in like manner as is tors were elected. Said board shall also done in the canvassing of votes cast for certify to each delegate so elected his elec- ! members of Congress.” tion as such delegate. The county clerk “Sec. 41. Any candidate voted for at any shall certify to the chairman of each politi- primary election provided for in this act, cal party of the county the delegates elected who conceives himself aggrieved on account by each such political party as delegates to of fraud or error by the board of primary the county convention.

election inspectors, in the count of the votes “Sec. 38. After the votes at any primary cast, or the returns made by said board, may, election in any election precinct shall have on or before the close of the day or days been counted, the officials counting the same upon which the board of state, city, or counshall publicly declare the result, and forth ty canvassers meet, present to and file with with make and certify written detailed state- the chairman of the particular board, a writments, such as are required by law for gen- ten or printed petition, which shall be sworn eral elections, except as hereinafter provid to, and shall set forth as near as may be the ed, showing the whole number of votes cast nature of the errors or fraud complained of, in such election precinct for each candidate and the particular township, ward, or prevoted for on each party ballot, and shall cer cinct in which the alleged irregularities octify, subscribe and seal in a separate envel curred and ask for a recount of the votes ope such statements and one of the tally cast therein. Such petitioner shall at the sheets, and write thereon the name and num same time deposit with the chairman of said ber of the election precinct, if any, and de board the sum of ten dollars for each and liver such statements and tally sheets to such every township or ward, the vote of which persons and at such times as are required by he requests to have recounted by said board: law for general elections. As soon as they Provided, that no candidate shall be required have completed the counting of the votes of to deposit more than one hundred dollars. their respective precincts they shall return When said petition is filed and the amount all the ballots voted to the ballot boxes, herein prescribed is deposited, and after givwhich shall be locked and sealed, and such ing at least twenty-four hours' written notice ballot boxes, and all books, unused ballots, | thereof to the opposing candidate, by handing supplies, lists and subscribed oaths shall be to such candidate a copy of the petition, or safeguarded and returned in the manner pro if such candidate cannot be found, by leavvided for by law governing general elections. ing such copy at his place of residence, with

"Sec. 39. The returns of said primary elec some person of suitable age, it shall be the tion shall be canvassed and the results de

duty of said board of canvassers to designate clared in the same manner and within the a time and place when the facts set forth in same time after the primary election and by said petition shall be investigated and when the same officers as is provided by general the ballot boxes used in such election in such law for canvassing the returns of and de township or ward shall be brought before it. claring the result in city, county, district and The said board shall thereupon, in some pubstate elections, except that in the case of lic place where the interested candidates and nominations for United States Senator, Gov- | | their counsel may be present, if they so deernor, or Lieutenant Governor, or officers sire, proceed forthwith to open the ballot from districts comprising more than one boxes from such townsbips or wards and to county, the county clerk of each county af- | make a recount thereof as to such candifected shall transmit to the Secretary of dates, and make a correct and complete reState, within ten days after the primary turn in writing showing the full number of election, certified copies of the number of votes cast and the names of the candidates votes received by each of the candidates for and the number of the votes given to each. the nomination of any of the said offices. When the recount of each box is completed

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