existed, and that they were on friendly terms and the father's suit was apparently for the real purpose of defeating the wife's levy. Held, that his bill was properly dismissed.

2. Levy upon a remainderman's interest and the sale thereof on execu tion do not affect the right of the owner of a life interest to control and possess the property during his life.

Appeal from Shiawassee. (Newton, J.) June 9.-Sept. 29. BILL for reconveyance. Complainant appeals. Affirmed. A. R. McBride for complainant.

Wm. A. Fraser and Hugh McCurdy for defendants Roxa Storrs and Steffy.

CHAMPLIN, J. Complainant states that in 1874 he was the owner in fee of one hundred and twenty-eight acres of land in Vienna, Shiawassee county, Michigan; that in that year. he and his wife, Ruth, executed and delivered to their son, James R. Storrs, a deed of this land, and that, soon after, James R. and his wife, Roxa, executed and delivered to complainant and wife a deed of the same land, which granted to them a life-estate therein; that the conveyances were made upon the parol understanding that James R. and Roxa were to support, maintain and care for complainant and wife during their lives; that soon after the delivery of such deeds his wife Ruth died, and he married again, and continued to live on the land with his second wife; that James R. and his wife were living on a farm purchased by complainant for them in Argentine; that their house burned and then they came to complainant's for shelter, which resulted in trouble in the family; that they made it so unpleasant for his wife that she left him, and has since died; that they failed and neglected to support, maintain and care for complainant; that Roxa has obtained a divorce from her husband, and a decree for alimony, under which she has levied upon and sold the interest of James R. in the land, and that defendant Steffy is the purchaser; and he asks that the defendants may be decreed to reconvey the premises to him on the ground that James R. and Roxa have failed to perform the oral agreement upon which the conveyances were made, and that Steffy purchased with notice

of that fact and of the fact that complainant was about to file his bill of complaint to compel a reconveyance.

There are statements in the bill of the family history and outside transactions which have no material bearing upon the equities under consideration, and they will not be noticed. here.

It appears that no complaint was ever made by complainant of his treatment by Roxa, and no claim was ever made of the existence of the parol agreement alleged in the bill for support until about the time of commencing this suit, while the existence and legal validity of the deeds have been asserted by the complainant and by James R. in the most solemn form in other litigation respecting the land in question. Mortgages have been executed upon the land, and are still outstanding, by the complainant and James R. acting in conjunction, and based upon the title and ownership conferred by such deeds. It furthermore appears that the complainant and his son James are on friendly terms, and nothing is alleged in the nature of unkind treatment from him, or an unwillingness or refusal on his part to carry out the arrangement between him and his father. He has made no answer to the bill of complaint, but has suffered it to be taken as confessed. The allegations of the bill and the burthen of the proof seem to have been directed against the conduct of the defendant Roxa, and it is impossible from this record to escape the inference that the bill is filed with the assent and for the benefit of James R., to prevent the defendant Roxa from realizing the alimony decreed to her in the divorce suit. If there was anything wrong or inequit able in that decree, it should have been appealed from. It cannot be affected by these indirect proceedings. Her levy and sale do not affect the rights of complainant to the possession and control of the premises during his life. We do not think the complainant has established such a case as entitles him to the relief prayed, and the decrce dismissing the bill of complaint is

Affirmed, with costs.

The other Justices concurred.

THOMAS S. BROWN V. ELIZA BELL.

Wills-Exclusion of testimony-Inheritable interest-Personal representa tives-Testamentary provisions—Withdrawing motion to strike out— Issue not pleaded.

1. How. Stat. § 7545 provides that in suits to which the heir, personal representative, etc., of a decedent is a party, the party adversely interested cannot testify as to matters known only to himself and the deceased. Held, that this only applies when the estate is in some sense one party and the heir, representative, etc., is the other; and that it will not exclude such testimony from the proponent of a will claiming under it, where the contestant is not within the terms of the statute as an heir, devisee or representative of the estate.

2. The interest of the heirs of an intestate is the estate remaining after payment of debts.

3. The personal representative of a deceased person is his executor or administrator, whose interest, while it lasts, is the amount of the assets of the estate; for these he is responsible until the debts are paid or he is otherwise discharged by order of court.

4. A testator's disposition of his property has no bearing upon a contest of his will except as it tends to show whether or not he was sound of mind.

5. Where a motion to strike out testimony on being consented to by the other side, is withdrawn in order to save a ground of error, the appellate court will not feel bound to consider the objection made to it. 6. Where the contestant of a will does not allege undue influence in his pleadings, and submits his case upon the theories of mental incom. petency and the defective execution of the will, there is no error in refusing requests to charge that suggest for the first time the theory of undue influence.

Error to Wayne. (Chambers, J.) June 10.-Sept. 29.

Appeal from disallowance of will. Contestant brings
Affirmed.

error.

Walker & Walker and Atkinson & Atkinson for appel

lant.

A. F. Wilcox for appellee.

SHERWOOD, J. On the 5th of April, 1857, Thomas Brown of Greenfield in the county of Wayne, made his last will, by the provisions of which he gave to his wife all his estate, both real and personal, for and during her life, with remainder after her death to his son, Thomas S. Brown, the proponent in this case, to whom he gave immediate possession of all the property.

The testator died on the 9th day of April, 1857, living but four days after the making of the will. He had been sick about eight months previous to his death, confined to his house during winter, and to his bed for about three weeks before his death, and died of consumption, aged about sixty years. At this time his property consisted of a farm of forty acres, with some personal property; and his household, of his wife, his son, the proponent, and his wife, and a grandchild, being a child of a deceased daughter. A married daughter, Mrs. Fulton, lived in the immediate vicinity. These, with two other children of his deceased daughter, constituted his immediate circle of relatives. James Carroll, a young man sixteen years of age, also lived at the house and assisted in carrying on the farming. A few days before the will was made, a physician, an old acquaintance of the family, had been called, and it was ascertained, and the family understood, that there was no help for the testator and his death was but a question of a few days. Two daughters of Mrs. Fulton staid at his house that night to assist the family in taking care of the deceased. That night the deceased made the will offered for probate, and the two daughters and young Carroll were called into the testator's room and signed the will as witnesses thereto. The will was draughted at the request of the testator by his son the proponent, who with one of the granddaughters, one of the Fulton girls, now Mrs. Blackman, are the only persons surviving of all who were present at the execution of the will. After the will was made, signed and witnessed as above stated, it was handed to the widow of the testator, who, as appears, kept the same until she died in the spring of 1882. Soon thereafter proponent took the will to the probate office. for the purpose of

having it probated, in the county of Wayne. The probate was contested by a granddaughter, Eliza Bell, on the grounds that the testator was in such poor health and so far enfeebled both in mind and body as to be incapable of making the will offered for probate. The probate court denied the application. The proponent thereupon appealed to the circuit, where on a trial before a jury, the will was sustained, and contestant brings the case here on writ of error.

Proponent, contestant and Mrs. Blackman were all sworn in the case, and the principal question in this Court arises on the right of proponent to testify as to facts equally within. the knowledge of the testator in his life-time. It was an important question, inasmuch as the only subscribing witness surviving at the time of the trial was pecuniarily interested in defeating the will. The counsel for proponent, when he had proponent upon the stand, proposed to prove by him. that the testator made an agreement with him several years before his death, by which he (proponent) was to have all the property, and he was to take care of his parents as long as they lived, and the will, so far as it related to proponent, was only in accordance with the testator's agreement and often expressed wishes, and that proponent had fulfilled the agreement upon his part.

The statute under which this testimony is claimed to be incompetent reads as follows: "That when a suit or proceeding is prosecuted or defended by the heirs, assigns, devisees, legatees, or personal representatives of a deceased person, the opposite party, if examined as a witness in his own. behalf, shall not be admitted to testify at all to matters which, if true, must have been equally within the knowledge of such deceased person." How. Stat. §7545.

We do not think the statute quoted applies to this case. The contest is not between the estate, or the representative of the estate, and the proponent. The statute applies only when the estate is in some way one of the parties, and the heirs, assigns, devisees or legatees are the others. The interest of the heirs in an intestate estate is the amount thereof after the payment of the debts of the deceased. The repre