in the exercise of sound discretion he should have directed the issuance of additional writs, directed to the parties against whom the same were sought.

Mandamus will issue.

PETERS et al, v. FOWLER et al. (No. 20.) (Supreme Court of Michigan. Sept. 27, 1918.) 1. WILLS 439-CONSTRUCTION-INTENT. Where the intent of a testator can be clearly perceived and is not contrary to some positive rule of law, it must prevail.

2. PERPETUITIES 3-BEQUESTS TO CHARI

TY-STATUTES-CONSTITUTIONALITY.

Pub. Acts 1907, No. 122, as amended, providing that no gift, grant, bequest, or devise to religious, educational, charitable, or benevolent uses shall be invalid by reason of the same intervening statute against perpetuities, is valid and constitutional.

Appeal from Circuit Court, Gratiot County; Kelly S. Searl, Judge.

Bill by Jessie L. Peters and another against Arthur E. Fowler, administrator of the estate of Abner Peters, deceased, and others. From an order overruling a demurrer and denying a motion to dismiss the bill of complaint, the defendants appeal. Reversed, and complaint dismissed.

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

William M. Smith, of St. Johns, for ap pellants Vaughn and others. Charles H. Goggin, of Alma, and George P. Stone, of Ithaca, for appellants Peters and others. O. G. Tuttle, of Ithaca, for appellants Creaser and others. Edwin H. Lyon, of St. Johns, and John W. Myers, of Ithaca, for appellees.

MOORE, J. This is an appeal from an order overruling a demurrer to the bill of complaint and denying a motion to dismiss the bill of complaint. The bill of complaint was filed September 7, 1915, for the purpose of decreeing the last will of Lafayette Peters to be void, and that a certain deed dated February 24, 1915, made by Lafayette Peters, be set aside, and that all other conveyances and mortgages based on said deed or on proceedings in probate court in relation to the estate of Lafayette Peters be set aside. The plaintiffs are a nephew and niece and heirs at law of Lafayette Peters. On the 5th day of April, 1911, Lafayette Peters made the will in controversy, which will was admitted to probate on the 7th day of April, 1914. No appeal was taken from its allowance. About 20 paragraphs of the will make bequests about which there is no controversy. Paragraph 22 reads:

"I give and bequeath to the Elwell Methodist Episcopal Church of Elwell, county of Gratiot, state of Michigan, incorporated under act number 11 of the Public Acts of 1899 of the state of Michigan, as appears by articles of incorporation dated January 17th, A. D. 1911, re

corded in the book of records of incorporations in the county clerk's office of Gratiot county, 81, the income of five hundred dollars of my esstate of Michigan in Liber number 4, on page tate. This income it shall receive as long as there shall be Methodist Episcopal services held open for the public, in the now incorporated village of Elwell, in the township of Seville, county of Gratiot and state of Michigan, or in twelve or more Sundays each year, payable such territory as said village may grow to, yearly, commencing one year after the said five hundred dollars is set aside by my executors for that purpose, to such officer as the majority of the Board of Trustees shall in writing designate as long as such corporation exists and to such person as the persons holding such meetings shall designate in writing should such corporation cease to exist, and the receipt of the person heretofore designated shall be a sufficient discharge to my executors or trustees under this will for the same.

"Upon said services not being held twelve Sundays in one entire year, said principal sum and any accrued income I give and bequeath to the Board of Foreign Missions of the Methodist Episcopal Church incorporated by the Leg

islature of the state of New York and the receipt of the treasurer thereof shall be a suffider this will for same. cient discharge to my executors or trustees un

"I shall expect my executors as soon as said five hundred dollars is available to place said money in certificates of deposit, drawing interest in a bank and to loan the same on only first mortgage on real estate only as soon as they can and the judgment of my executors or trustees under this will as to the bank the money shall be put into or the real estate the loans shall be made on shall be questioned."

Paragraph 23 of the will is the one that plaintiffs claim makes the will void. It

reads:

"All the rest and residue of my estate, real, personal and mixed, of which I shall die seised and possessed or to which I shall be entitled at my decease I give, devise and bequeath to the Board of Foreign Missions of the Methodist Episcopal Church incorporated by the Legislature of the state of New York, and the receipt of the treasurer thereof shall be a sufficient discharge to my executors for the same. "A. I will and direct that all expenses incurred under the items heretofore numbered 1. and everything necessary under item ninth be paid in full from moneys personal and mixed property that I have on hand at the time of

my decease.

"B. In order to pay the aforesaid legacies and give as much under the twenty-third as I desire to unless previous to my death I shall dispose of the real estate I now own I desire my executors to hold the following described real estate that I die seized and possessed of for five years after the date of my death, if necessary to obtain seventy-five dollars per acre for said real estate. For it is my will that any of the following described real estate that I shall die seized and possessed of shall not be sold for less than seventy-five dollars per acre, unless it can all be sold so that it will average seventy-five dollars per acre and as much more as my executors can obtain until after five years after the date of my death. After five years after the date of my death my executors are at liberty to divide it and dispose of the same in a manner as in their judgment will bring the best possible price. This shall also apply to any part of the said described property that I may own at the time of my death.

the five years be necessary, as heretofore set forth, in which to dispose of said real estate and settle my estate. I desire that item twenty-third be paid in one sum upon the closing up of my estate. That all items except the first, ninth, and twenty-third be paid or set aside for the purposes heretofore mentioned at the convenience of my executors and that no property shall be sold to pay anything, except as heretofore provided. All other dispositions of any property, real, personal or mixed except as heretofore set forth under this will to pay the different bequeaths and set aside the funds mentioned herein shall be at the convenience and judgment of my executors, both as to disposition and payment.

"D. During the five years that my executors may have to hold said real estate I shall expect them to rent it to the best possible advantage, keeping the premises and buildings on the same at the time of my decease in as good condition and repair as they possibly can. In case a barn or other buildings except dwelling, should be destroyed they shall have the right to replace the barn at a total expense not to exceed one thousand dollars out of any funds they may have. In case the insurance should be insufficient or it should not be insured, but I desire that my executors should keep them insured in the Farmers Mutual of Gratiot and Clinton counties or some other good mutual or stock company.

"I give my executors full power in the premises for the best interest of said estate, but under no circumstances shall they mortgage or encumber said estate, but may take a mortgage on the sale of said estate.

"E. I have herein remembered all my relation that I know about. For many years the foreign missionary work of the Methodist Episcopal Church has been of great interest to me. I have no wife nor children and my father and mother have long ago passed to the other world and I have for a long time had in view the leaving of nearly all of my property as set forth in the twenty-third bequeath."

"I know the financial condition of my brothers and sisters and their children heretofore mentioned and this will is just as I want it. "F. As I have for many years lived either entirely alone or with people to whom I am not related it is my will that upon my decease my executors hereinafter named shall have charge of my remains or such persons as they shall designate. It is my desire that my remains be buried in the lot my mother is buried in, in the cemetery known as the Pritchard Cemetery in said township of Sumner, in the county of Gratiot, and state of Michigan, and that there shall be erected within one year after my decease by my executors a marker over my grave. with a suitable inscription on and on the mon.ument on said lot, if at that time there is a place for the same."

The will also contains the following: "And I desire that said executors named should be trustees under the will when the estate is closed. I ask that the courts that they account to shall allow them their cash disbursements and what is lawful and right for their services in the settlement of this estate as special administrators and executors and as trustees under the will thereafter."

We quote from the brief of the plaintiffs: "The theory upon which plaintiffs filed and claim the right to maintain their bill in this case as shown by their bill of complaint is as follows:

of kin of the deceased, and these plaintiffs, taking a part of it by inheritance, have a standing to attack that deed and the subsequent transfers of that property.

"(2) That Lafayette Peters was not a mentally competent person and was in fact in a state of coma immediately preceding death at the time that the deed of February 24, 1914, is alleged to have been executed, and that therefore the deed ought to be set aside. "(3) That as to the 80 acres of land which remained undisposed of at the time of the death of Lafayette Peters (and also as to the other 80 acres of land if the Board of Foreign Missions should attempt to claim it now), the will violated the statute against perpetuities, and that violation is not saved by the provisions of Act No. 122 of the Public Acts of Michigan of 1907, and amendments thereto.

"(4) That as to the will itself it does not purport to vest the title to the lands referred to in said will in any person or persons prior to the time provided for therein as the time of sale and division of the proceeds thereof, and therefore that the will in question is void as to all of the lands described therein.

"(5) That the proceedings in probate court touching the sale and disposal of that remaining 80 acres of land were and are without jurisdiction and void.

"(6) That the main or whole purpose of the will in question was to bestow the bulk of the property upon the Board of Foreign Missions, and that because of the failure of that purpose the entire will should be set aside and the property pass to the heirs at law of the deceased."

It is the claim of defendants that the demurrer and the motion to dismiss the bill of complaint should have been granted for the following among other reasons:

"(1) Because the order and decree admitting the last will and testament were valid, * * * and that said order and decree stand unreversed and unappealed from and the subjectmatter of this suit is therefore res adjudicata.

"(2) Because the gift, grant, and bequest of the rest, residue, and remainder of the said estate were made for religious, educational, charitable, and benevolent purposes, which said purposes were authorized by law and made in compliance with such laws. *

*

"(3) Because said plaintiffs as heirs at law of said deceased would take no right, title, or interest in the land deeded by said deceased during his lifetime to his brother Abner Peters, whether said deed was valid or invalid as the defendant the Board of Foreign Missions of the Methodist Episcopal Church, the residuary legatee would take all interest in and to said land so deeded and the right to attack the validity of said deed."

"(4) Because it appears from said bill that the defendants the executors named in said will were duly and legally appointed by the probate court of Gratiot county, which had jurisdiction of the estate of said Lafayette Peters, deceased; that they duly qualified and accepted said trust and were entitled to the possession of said estate for purposes of administration."

[1] In our view of the case it will not be necessary to discuss all of the very interesting legal questions so ably argued by counsel. In Foster v. Stevens, 146 Mich. 131, 109 N. W. 265, it was said in substance that the intent of the testator is the cardinal rule in the construction of wills, and, if that intent can be clearly perceived and is not contrary to some positive rule of law, it must prevail, and that such a construction should be adopt

Action by Albert H. Landsberger against Albert L. Joyce and another, doing business as A. L. Joyce & Son. Judgment for plaintiff, and defendants bring error. Affirmed. Argued before OSTRANDER, C. J., and BIRD, MOORE, STEERE, BROOKE, FELLOWS, STONE, and KUHN, JJ.

C. G. Turner, of Grant Rapids, for appellants. Eastman & Eastman, of Grand Rapids, for appellee.

OSTRANDER, C. J. The suit is brought to recover the purchase price of certain goods sold and delivered to defendants by plaintiff. One shipment was made in November, 1914, $82.50; the other in August, 1915, $481.25. That the goods were originally sold to, delivered, and received by defendants is not disputed. That they had not been paid for when suit was begun is not disputed. There is no contest about quality, quantity, or price. There is no controversy whatever over the November item. The declaration is upon the common counts in assumpsit; the plea, the general issue. With the plea defendants gave notice that they would show, in defense of the action:

"That said goods mentioned in the declaration in said cause were ordered by said defendants for fall delivery with an understanding that said goods should not be delivered until the latter part of November, 1915, and that said defendants should have 30 days and 60 days after delivery at that time. That said goods were shipped by said plaintiff in the summer time of 1915, when said plaintiff knew that said goods could not be used by said defendants, as they were winter goods, and that said defendants could not use them at that time, and so notified said plain

tiff.

"Said defendants will also give in evidence and insist in their defense: That, just before the first of the year of 1916, the said plaintiff had another agreement with said defendants at the city of Grand Rapids, Mich., in which said plaintiff agreed that said defendants need not pay for the goods, and that said plaintiff would take the same back and notify said defendants where to ship them. That said defendants held said goods as per last arrangement with said plaintiff subject to the order of said plaintiff, and still have the same subject to their order according to said agreement. That at the time said plaintiff took the amount of freight bills and other things connected with expenditures made by said defendants in relation thereto, and acquainted himself with all the circumstances in the matter, and agreed as above stated."

The cause was tried by the court without a jury. At the conclusion of the trial the court rendered, orally, an opinion, concluding with an order for judgment for the plaintiff. The attorney for defendants said, "A stay of twenty days and findings of facts and law I would like to have made by the court," and the court replied:

"Well, that is all right. I will file what I have said here. I will look that over, and if it is enough, in my judgment, I will file it as findings of fact and law."

Later, this opinion was filed as "Findings

the following as the formal findings:

"This cause having come on to be heard before the court without a jury, the court does hereby find the facts to be as follows:

"(1) That in the year 1914, and for some years prior thereto, the plaintiff was engaged in business in the city of San Francisco, in the state of California, as a merchandise broker and manufacturer of food products.

"(2) That the defendants in the year 1914, and for some time prior thereto, had been engaged and were engaged in the retail business, having a store in the city of Grand Rapids, and one store, in Traverse City, both in the state of Michigan.

"(3) That on the 2d day of February, 1914, the defendants signed a written contract for the purchase from plaintiff of 50 cases of Tomato Nectar and fifty cases of Individual Clam Bouillon, amounting to $481. That these goods were to be shipped 'on or about the fall of 1915,' and were to be paid for one-half 30 days and the balance 60 days from date of invoice.

"(4) That on the 3d day of November, 1914, the defendants ordered from plaintiff ten cases of Clam Bouillon for immediate shipment, and on the 5th day of November, 1914, defendants made additional order from plaintiff of ten cases of Clam Bouillon, amounting in all to $82.50, and that these goods were shipped to the de fendants on the 14th and 23d days of November, 1914, and terms of payment 30 days from date of invoice.

"(5) I further find that the goods called for by the order of February 2, 1914, arrived and were accepted by the defendants at Grand Rapids, Mich., the latter part of August, 1915.

"(6) I further find that defendants made some complaint because these goods arrived too early, and that the plaintiff, to meet this objection, agreed to extend the date of the invoice from August 17th to October 17th, thus extending the time of payment 60 days beyond the original agreement.

"(7) I further find that during the year of 1915 the plaintiff made persistent and repeated efforts to secure from the defendants payments of the invoice of the goods shipped November, 1914, of $82.50, and after November 17, 1915, plaintiff made repeated efforts to secure payment of the goods shipped in August, 1915. And I further find that defendant made no payments on any of the goods shipped.

"(8) I further find that on the 2d and 3d days of December, 1915, the plaintiff was in the city and called upon the defendants for the purpose of securing payment of his bills and, in order to reach an immediate settlement or adjustment, offered to take back one-half of the goods shipped in August, 1915, provided that the defendants would immediately pay the balance of the goods shipped August, 1915, and also the bill of $82.50 for goods shipped November, 1914. Defendants refused to accept this offer. I further find that this was the only arrangement or agreement or understanding that the plaintiff had with the defendants on this occasion.

"Conclusions of Law.

"1. I therefore conclude, as a matter of law, that the defendants are indebted to the plaintiff, and that the plaintiff is entitled to recover from