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east of his house, where there was a gate constructed for the passage of teams and vehicles, and through his carriage house or shed upon the north. His supplies of wood, coal, and provisions were drawn to the rear of the house through these two ways. There is also evidence that he protested to parties from whom he had bought wood against their driving over the church lot alongside his fence, and throwing the wood over the fence. The preponderance of evidence is against complainant in the use of this alleged way by Dr. Wilkins, and it is clear that she did not purchase her land with any view to an existing easement over defendant's land.

GRANT, J. (after stating the facts). The judge filed a written opinion holding that whatever use was made of defendant's land by Dr. Wilkins or complainant was a permissive one. He also found that "there is not the least proof that it was founded, or ever has been, on any claim of right to so use it." Passing over this land to complainant's lot was very infrequent, and was not by her, but by those from whom she occasionally bought merchandise for her own use. Such driving over the carriageway made and used by defendant did not tend to show an exclusive claim or right in her. The most that can be claimed is that defendant permitted complainant and others to drive through its property for their convenience. Complainant had ample means of access to her house over her own lands. One having ample means of access to his own premises, over his own land, cannot acquire a prescriptive right of way over adjoining lands without asserting his right thereto in some way more hostile and notorious than its occasional use for his own convenience. The law under which such an easement is obtained is not in doubt. It has been stated in a multitude of cases. The question which the courts have had to decide is whether the facts in the particular case are sufficient to establish the easement. We said in Ann Arbor Fruit & Vinegar Co. v. Railroad Co., 136 Mich. 599, 608 (99 N. W. 869, 872, 66 L. R. A. 431):

"We concede that evidence of a notoriously hostile claim and hostile possession is admissible to prove, and that such evidence may in some cases justify the finding of, a prescriptive right. But this finding rests, in our judgment, upon the assumption that the owner of the servient tenement acquired actual notice of the adverse holding."

See, also, Andries v. Railway Co., 105 Mich 557 (63 N. W. 526); Dummer v. Gypsum Co., 153 Mich. 622 (117 N. W. 317); Burnham v. McQuesten, 48 N. H. 446; Chicago, etc., R. Co. v. Johnson, 205 Ill. 598 (68 N. E. 1112). Such actual notice may be determined by the character of the use and occupancy. Such use and occupancy, however, must be so open, notorious, and hostile as to leave no doubt in the mind of the owner of the land that his rights are invaded in a hostile manner. Permissive use can never ripen into title by prescription. 22 Am. & Eng. Enc. Law (2d Ed.), p. 1202.

The defendant's church buildings and grounds were occupied upon Sundays, and were generally unoccupied on week days. They were originally surrounded by fences with gates, and also with an entrance through the shed above mentioned. Whether these fences were retained, when the church was remodeled and the grounds graded and seeded, the record does not show. The church authorities had no notice, or reason to believe, that complainant claimed a prescriptive right of way over its property until shortly before this suit was commenced. Such passing over it was not an assertion of a hostile claim, or frequent enough to become notorious. The parties delivering goods to her entered at the same place the worshipers and attendants upon the church entered, and what little passing was done into her lot made no perceptible impression upon the ground. If there were no fences, complainant could not acquire a right of way, granting all the evidence given in her behalf to be true. Kilburn v. Adams, 7 Metc. (Mass.) 33 (39 Am. Dec. 754). Chief Justice Shaw said in that case:

"Such a use [passing over the land by an adjoining

disease, is able to comprehend the purpose of a transfer of insurance from his wife to his daughter, and whose intention appears rational, is properly held to have been competent to execute the transfer.

3. UNDUE INFLUENCE-EVIDENCE-INFERENCES.

Undue influence is largely a matter of inference from facts and circumstances, including the character, disposition and mental condition of the person influenced, and the opportunity to influence him.

4. SAME.

A finding of undue influence is sufficiently supported by testimony that the grantor left his wife, who was insane and had only a small amount of property, without any of his estate for her support, and transferred it all to his daughter who was married and sufficiently provided for, that he was enfeebled by disease, was away from the wife and within the influence of his daughter, that no ill feeling towards his wife existed, and no other means of influencing him to make the transfer of insurance to the daughter were disclosed.

5. CONTRACTS

SPECIFIC ENFORCEMENT PAROL ANTENUPTIAL AGREEMENT-FIDUCIARY RELATION.

A parol antenuptial agreement, valid because executed on the one side and because of execution tendered on the other, providing for a transfer of insurance to the wife in consideration of a devise of realty may not be annulled by one of the parties who was, at the time of the attempted annulment, the husband and guardian of the other, the alleged reason for the rescission being that the wife was incompetent to execute her part of the agreement.

Appeal from Bay; Collins, J. Submitted October 12, 1909. (Docket No. 52.) Decided December 10, 1909.

Bill by Martin M. Andrews, guardian of the estate of Agnes C. Cole, against Mabel Lavery and Arthur Lavery to set aside a change of beneficiary in a policy of insurFrom a decree for complainant, defendant Mabel Lavery appeals. Affirmed.

ance.

Stoddard & McMillan, for complainant.

T. F. Shepard, for appellant.

Agnes C. Cole, the ward of complainant, is the widow of Fred B. Cole, deceased, and defendant Mabel Lavery is his only child by a former marriage. These two are the sole heirs at law of the deceased. Mr. Cole married his second wife in August, 1905. In 1906 she became affected with some mental disorder. For a short time she was in the local hospital at Bay City. She was then taken to a private asylum at Flint. On December 28, 1906, Mr. Cole filed a petition in the probate court, praying that his wife be declared insane, and admitted to the Eastern Michigan Asylum for the Insane at Pontiac, there to be supported at the expense of the county. Hearing was fixed for December 31st, and on that day, upon the certificate of two physicians, she was adjudged insane and a fit person for care and treatment in said asylum, and it was ordered that she should be admitted as a private patient. By said order Mr. Cole and the defendant Mabel were authorized to remove Mrs. Cole to said asylum; and on January 30, 1907, they removed her to that institution. Meanwhile she had remained in the private asylum at Flint.

On December 29, 1906, Mr. Cole filed a petition in the probate court, alleging that his wife, Agnes C. Cole, had personal estate of the estimated value of $2,500; that, by reason of her insanity, she was incompetent to have the care and management of her estate, and praying that he be appointed as her general guardian. On January 8, 1907, he filed another petition, alleging that she had personal estate of the estimated value of $1,350, and prayed to be appointed special guardian; that she was then undergoing treatment at the Oak Grove Sanitarium at Flint; and that it was necessary to use a portion of her estate immediately for said treatment and other expenses. He was appointed special guardian with a bond of $2,000, which he furnished. On February 5, 1907, Mr. Cole was appointed general guardian of his wife, and qualified by filing the required bond in the sum of $2,000. On February 12th he filed with the probate court his account as

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