on Limitation, § 312, the rule is stated as follows: "The general rule appears to be in this country that at the time of suing out of the writ the action commences, and either when the writ is delivered to the sheriff or to his deputy, or when it is sent to either of them, with a bona fide intention to be served upon the defendant, it is considered to have issued." Counsel for the plaintiff rely upon the case of Harvey v. Insurance Company, 120 Mich. 606, 79 N. W. 898, construing it to hold that delivery of the writ to the officer within the year is not essential, if it be actually issued within that period, with bona fide intent that it shall be delivered to the officer for service within the year. that is a necessary conclusion, the case should be overruled in that particular, as at variance with the correct rule stated in Peck v. Insurance Company.

The judgment is affirmed.

In re MARK.

(Supreme Court of Michigan.

If

Dec. 21, 1906.)

1. WITNESSES - PRIVILEGE · INCRIMINATING TESTIMONY-CONSTITUTIONAL PROVISION. Where petitioner's testimony on an ex parte examination sustained a charge of perjury against defendant, who had testified in another proceeding that he had had an arrangement with petitioner relating to the commission of arson, petitioner had a right, under Const. art. 6, § 32, providing that "no person shall be compelled in any criminal case to be a witness against himself," to decline to answer a question asked him at the preliminary examination of defendant on the perjury charge, as to whether or not such arrangement had existed.

[Ed. Note.-For cases in point, see Cent. Dig. vol. 50, Witnesses, §§ 1026-1037.]

2. SAME-WAIVER.

That it was upon testimony given by petitioner on an ex parte examination that defendant was arrested on a charge of perjury did not constitute a waiver of petitioner's right, under Const. art. 6, § 32, to decline to answer a question asked him on the preliminary examination of defendant, where the answer might have incriminated him.

[Ed. Note. For cases in point, see Cent. Dig. vol. 50, Witnesses, §§ 1053-1057.]

Certiorari to Circuit Court, Luce County; Joseph H. Steere, Judge.

Application of Henry Mark for a writ of habeas corpus. From an order dismissing the writ, he brings certiorari. Order vaeated conditionally.

Argued before CARPENTER, C. J., and MCALVAY, GRANT, MONTGOMERY, OSTRANDER, HOOKER, and MOORE, JJ.

James J. McNeil (P. H. O'Brien, and F. T. McDonald, of counsel), for appellant. Louis H. Fead, Prosecuting Atty., for the People.

PER CURIAM. A writ of certiorari brings before us for review habeas corpus proceedings determined in the circuit court for the county of Luce. Petitioner was pros

ecuted in that court for the crime of arson. The case was once tried and resulted in a disagreement. It is still pending, and is expected to be tried at the next term of said court.

One William Michaels was a witness for the people on the trial of defendant and on the preliminary examination that took place before said trial. It is charged that, in testifying on the preliminary examination, said Michaels committed perjury in testifying as follows: "In the back room of Henry Mark's [petitioner's] saloon there was a little arrangement made between Mark and myself that * * * I was to borrow a gun from Mr. Olmstead and go down the railroad track from Olmstead's east on the main line and shoot it off twice. I got the gun and shot it off twiće. * It was the request of Henry Mark that I should cut my coat to make out that some one shot at me. I cut it next morning on the sleeve. **

*

I heard Henry Mark say one night in his saloon that those fires were just for a bluff." A complaint alleging this charge was made by the prosecuting attorney upon suspicion before William J. Embury, a justice of the peace. Before the warrant was issued, petitioner was brought before said justice, sworn, and, on an ex parte examination conducted by the prosecuting attorney, gave testimony which fully sustained the charge of perjury. A warrant was thereafter issued against Michaels, and, on his examination before said justice, the people made petitioner a witness, and the prosecuting attorney asked him several questions, each of which he declined to answer upon the ground that said answer would have "some tendency to incriminate him." Five of those questions, viz., 1, 3, 4, 6, and 7 related to the testimony given by petitioner on the ex parte examination heretofore referred to. Question No. 1, may be taken as a type of these questions: It is as follows: "Did you or did you not last Monday evening testify before William J. Embury, justice of the peace, that you did not at any time make an arrangement with William Michaels whereby said Michaels was to borrow a gun from one Olmstead, Tuesday, June 5, 1906, and go down the railroad track from Olmstead's east on the main line and shoot it off twice?" Question 2 goes directly to the charge. It is as follows: "Did you have such an arrangement with William Michaels as is mentioned in the question above?" Question 5 relates to the testimony given by Michaels upon the preliminary examination. It is as follows: "I ask you, Mr. Mark, whether, on the examination before Harry L. Harris, justice of the peace, in the arson case against you and others, Mr. Michaels testified as follows, to wit: 'I cut my coat, and said some unknown man shot at me, at the request of Mr. Mark. Mr. Mark told me that, if I do this, they would assure me the office of highway commissioner.'" Because of his refusal to an

swer these questions, the justice committed petitioner to the sheriff to be by him held in custody "until he shall submit to answer the said questions." The circuit court dismissed the writ of habeas corpus issued to inquire into the legality of this commitment and remanded petitioner to the custody of the sheriff. Is this decision correct?

It is quite obvious that the questions relating to the testimony given by petitioner upon the ex parte examination are preliminary in character, and answers thereto should not be compelled unless the court had a right to proceed farther and obtain an answer to question No. 2, which had a tendency to prove that the alleged perjured testimony of Michaels was false. The important question then for our determination is this: Had the court authority to compel petitioner to testify (notwithstanding his claim that such testimony would criminate him) whether or not he had made an arrangement with Michaels whereby Michaels was to borrow a gun from one Olmstead and go down the railroad track and shoot it off twice? Petitioner contends that section 32, art. 6, of the Constitution of this state, reading, "No person shall be compelled in any criminal case to be a witness against himself," excuses him from answering that question. In support of the action of the justice and of the learned circuit judge, it is contended: First, that the claim of petitioner that his answer would tend to criminate him was a mere pretext not made in good faith, but for the dishonest purpose of protecting a confederate; and second, that by testifying on the ex parte examination petitioner waiyed his constitutional privilege. We will consider each of these questions.

First. Is petitioner's testimony that he declines to answer upon the ground that it would tend to criminate him a mere pretext? Before we can undertake to determine this issue, it must appear that the court has a right to determine it. Has it that right? The rule by which this is to be determined is correctly stated by Chief Justice Marshall, 1 Burr's Trial, p. 243, as follows: "When a question is propounded [a question which the witness declines to answer upon the ground that it may tend to criminate him] it belongs to the court to consider and to decide whether any direct answer to it can implicate the witness. If this be decided in the negative, then he may answer it without violating the privilege which is secured to him by law. If a direct answer to it may criminate himself, then he must be the sole judge what his answer would be. The court cannot participate with him in this judgment, because they cannot decide on the effect of his answer without knowing what it would be; and a disclosure of that fact to the judges would strip him of the privilege which the law allows, and which he claims. It follows necessarily, then, from this statement of things, that, if the question be of such a description

that an answer to it may or may not criminate the witness, according to the purport of that answer, it must rest with himself, who alone can tell what it would be, to answer the question or not. If, in such a case he say upon his oath that his answer would criminate himself, the court can demand no other testimony of the fact." This language was cited and approved in Re Moser, 138 Mich. 302, 101 N. W. 588, and our decision in that case is in conformity therewith. Can we say no direct answer to the question under consideration may criminate petitioner? Clearly not, for, if he answer the question "Yes," thereby admitting that he made the arrangement therein stated, he does criminate himself. This is, therefore, a case in which petitioner's statement "upon his oath that his answer would criminate himself" is conclusive. It precludes further inquiry. No court has authority to disregard it.

2. Did petitioner waive his constitutional right by testifying at the ex parte examination before the justice? A similar question arose in Temple v. Commonwealth, 75 Va. 892. There it was held that "the fact that the witness testified before the grand jury, and that it was on his testimony that the indictment was found, will not deprive him of his privilege to decline to testify on the trial of the party indicted." In the course of that decision the court said, quoting with approbation from an earlier decision, Cullen v. Commonwealth, 24 Grat. (Va.) 624: "If a full disclosure of the facts might tend to criminate the witness, we cannot say how that tendency is at all removed by showing that the witness had elsewhere made a statement tending to criminate him. The question before us is not what the witness may have said elsewhere, but whether, when it is apparent that a disclosure from him may tend to criminate him, he shall now in a pending trial be compelled to make that disclosure, although he claims his constitutional right of refusal. We do not see that his statements elsewhere have anything to do with the question." In Samuel v. People, 164 Ill. 379, 45 N. E. 728, the court held, as stated in the headnote in that case: "The right of a witness in a criminal case to refuse to give evidence tending to criminate himself is not waived by the fact that he signed an affidavit of the truth of the allegation in the information upon which the case is based." We cannot hold that petitioner waived his constitutional privilege.

It follows from this reasoning that the court had no authority to commit petitioner for refusing to answer questions, 1, 2, 3, 4, 6, and 7. This reasoning, however does not apply to question 5. We are unable to see how any answer to that question would have a tendency to criminate petitioner.

The order of the circuit court dismissing petitioner's writ should be vacated, and an order made directing his release upon his submitting to answer said question No. 5.

Testator made an antenuptial agreement with his wife, whereby, in lieu of dower and of claim on his personalty, it was agreed, if she survived him, there should be paid her by his executors, within 60 days after his death, $500 with interest at 7 per cent. per annum from the date of the marriage. By his will he prorided that his property should be divided equally between and among his wife and his children, share and share alike, provided that the share of his wife should be less $500 and the interest paid thereon; the same being the consideration in an antenuptial agreement. Held, that an amount consisting of annual payments of $35 made by testator to his wife, and indorsed on the agreement, was not to be deducted from the wife's share.

[Ed. Note.-For cases in point, see Cent. Dig. rol. 49, Wills, § 1240.]

Error to Circuit Court, Ionia County; Frank D. M. Davis, Judge.

Accounting by Jacob J. Sayer, executor. From the order of the probate court distributing the estate, Agnes Gunn appealed to the circuit court, where she had judgment, and the executor brings error. Affirmed.

Argued before CARPENTER, C. J., and MCALVAY, GRANT, BLAIR, and MOORE,

JJ.

R. A. Hawley, for appellant. George E. Nichols, for appellee.

MOORE, J. Theodore Gunn died May 14, 1902, leaving a last will which has been admitted to probate. The appellant, Jacob J. Sayer, is the executor named in the will and appointed by the probate court. The deceased left a widow, Agnes Gunn, him surviving, and David Gunn, Isabelle Sayer, George Gunn, Sarah Oatley, Isaac Gunn, Maggie Whorley, Emory Gunn, and Alice Gunn, his children. Agnes Gunn was his second wife. The children were the offspring of Mr. Gunn's first marriage. Prior to the marriage of Mr. and Mrs. Gunn, and on or about the 30th day of November, 1888, an antenuptial agreement was entered into by them, in which agreement is the following language: "That in lieu and in full satisfaction of her whole dower in his estate and of all claims of any and every nature whatsoever upon his personalty, he hereby provides and agrees that there shall be paid to her by his executors or administrators out of his estate the sum of five hundred dollars with interest thereon at the rate of seven per centum per annum from the date of such marriage, within sixty days after his death, should she survive him after such intended marriage." Further provisions followed to carry out the release of dower, and then: "And further, if the said marriage shall be had and she shall survive him, that she will not claim any share or interest in his personal estate, unless some part

thereof be given to her by his will or some act done by him subsequent to the execution of these presents." On the 15th day of June, 1898, Mr. Gunn made a will which contains the following provision: "My will is: First. That all my just debts, including funeral expenses, and the expenses of administration, shall, by my executor hereinafter named, be paid out of my estate, as soon after my decease as shall by him be found convenient. Second. All the rest and residue of my estate, personal, real and mixed, of which I shall die seised and possessed or to which I shall be entitled at my decease, I give, devise, bequeath to be equally divided between and among my wife, Agnes Gunn, and my children [naming them as above], or to the issue of any deceased child or children by right of representation, share and share alike; provided, however, that the share of my wife, Agnes Gunn, shall be less five hundred dollars and the interest paid her thereon, the same being the consideration named in a certain deed executed by her before marriage in lieu of dower in and to my real and personal estate." Mr. Gunn paid $35 yearly to his wife, which payments were indorsed on the antenuptial agreement. After his death, and on July 10, 1902, the executor paid her the sum of $35. On July 13, 1902, he paid her the sum of $7.29, being the interest from April 29. 1902, to July 13, 1902. On November 12, 1902, he paid her the principal, $500, and the interest from July 13, 1902, to that date, $18.76. On the 9th day of April, 1903, the executor filed his final account, from which statement it appears that there remained for distribution among the legatees of Mr. Gunn the sum of $12,423.67. Upon this accounting the probate judge made an order distributing the estate as follows, to wit: "To Agnes Gunn, David Gunn, Isabelle Sayer, George Gunn, Sarah Oatley, Isaac Gunn, Maggie Whorley, Emory Gunn and Alice Gunn, the whole of said estate, real and personal, share and share alike; provided, however, that the share of Agnes Gunn shall be less the sum of five hundred dollars and the interest paid her thereon up to and including sixty days from the date of death of said Theodore Gunn, deceased, the same being the consideration named in a certain deed executed by her before marriage in lieu of dower in and to the personal estate of said deceased, which said sum so to be deducted from the proportionate share of said Agnes Gunn was nine hundred twenty-seven and 29/100 dollars, as shown by the statement attached at the time of the account of said executor." Mrs. Gunn appealed from this order to the circuit court, where a trial was had before the court without a jury. On the trial the testimony of the scrivener who drew the will was taken, over the objection of the attorney for the appellee as to the conversation he had with Mr. Gunn at the time the will was drawn. Counsel for the appellant say:

"And the objection to this testimony and the holding of the court overruling any such objection occasioned the only exception that was taken on said trial." The court made findings of fact and law to which exceptions were duly taken. The circuit judge found a judgment in favor of Mrs. Gunn.

Counsel for appellant present the following questions in their brief: "(1) When, to what extent, and under what circumstances is parol evidence receivable as bearing upon the construction of a will? (2) Was the parol evidence, admitted on the trial of this case, receivable upon any question arising in the suit? (3) What is the proper meaning and construction of the language in this will, the meaning of which is controverted, and what was the real intention of the testator as indicated by such language, properly construed?" He insists the testimony of the scrivener should not have been taken, under the following rule: "Parol evidence cannot be admitted to supply or contradict, enlarge or vary the words of a will, nor to explain the intention of the testator, except in two cases, viz.: (a) To explain a latent ambiguity arising dehors, or (b) to rebut a resulting trust"-citing Bradner on Evidence, p. 389; also section 9, p. 280, and many cases. He further claims that the case does not come within the exceptions, and that the judgment of the probate court is right, and the judgment of the circuit court is wrong. Counsel for the appellee do not question the rule of law, but insist that the will shows the necessity of referring to the antenuptial agreement for its proper construction, and that the testimony of the scrivener is competent.

A reference to the provisions of the will which we have quoted will show that, after providing for debts, funeral expenses, and expenses of administration, Mr. Gunn desired his wife to share equally with his children; that from her share should be deducted "five hundred dollars and the interest paid her thereon, the same being the consideration named in a certain deed executed by her before marriage in lieu of dower in and to my real and personal estate." It cannot be determined from the will itself to how much the interest amounted which was to be deducted. To find the amount it is necessary to refer to the antenuptial agreement. It is fair to infer from the will that the amount to be deducted was the amount which made up the consideration named in the antenuptial agreement. When we refer to that agreement, we find that Mr. Gunn provides: "That in lieu and in full satisfaction of her

whole dower in his estate and of all claims of any and every nature whatsoever upon his personalty, he hereby provides and agrees that there shall be paid to her by his executors or administrators out of his estate the sum of five hundred dollars, with interest thereon at the rate of 7 per centum per annum from the date of such marriage within 60 days after his death, should she survive him after such intended marriage." There is a further provision that because of the antenuptial agreement "she will not claim any share or interest in his personal estate, unless some part thereof be given to her by his will or some act done by him subsequent to the execution of these presents."

It will be observed that under these provisions Mrs. Gunn relinquished all claim she would have to Mr. Gunn's property and estate, unless she survived him. She was not entitled by the law, in the absence of the agreement, to dower until his death, nor to his personal estate. The agreement was that, instead of her taking what the law would give her, she would take in lieu thereof $500 with interest thereon at 7 per cent from the date of the marriage to be paid to her by the executor within 60 days after the death of Mr. Gunn. As a matter of fact, the executor never did pay this interest, but contented himself with paying one year's interest on July 10, 1902, $35, and the further sum of $26.05, and he charged her the payments which had been made to Mrs. Gunn by her husband. Had the executor paid to Mrs. Gunn according to the provisions of the antenuptial agreement, and deducted from her share the payments thus made, or had he deducted simply the amount he in fact paid, he would have reached the same result which the circuit judge reached, and it would not have been necessary to take parol testimony. When the two instruments are read together, it is clear this is all he was entitled to deduct. The scrivener testified Mr. Gunn desired the will drawn so his wife should share equally with his children in the property he left, and he (the scrivener) undertook to so draw the will; that Mr. Gunn did not have the antenuptial agreement with him at the time, and said the will was to take the place of it. As before stated, when the will and the antenuptial agreement are read together, and the provisions contained therein are carried out, it results in an equal division of the property, and it is unnecessary to determine whether the parol testimony was admissible.

Judgment is affirmed.

QUIST v. GOODFELLOW. (Supreme Court of Minnesota. Dec. 28, 1906.) BROKERS REAL ESTATE AGENTS COMMISSIONS.

Where the owner of real estate, which he has listed with an agent for sale for a definite price, sells the same to a person who was induced to purchase it by the efforts of the agent, but in good faith and in ignorance of those efforts, and for a consideration less than that given the agent, he is not, there being no exclusive agency, liable for the commission agreed to be paid for the production of a purchaser ready, able, and willing to buy.

[Ed. Note.-For cases in point, see Cent. Dig. vol. S, Brokers, §§ 85-89.]

(Syllabus by the Court.)

Appeal from Municipal Court of Minneapolis; E. F. Waite, Judge.

Action by Charles A. Quist against Reuben S. Goodfellow. Verdict for defendant. From an order denying a new trial, plaintiff appeals. Affirmed.

John Lind and A. Ueland, for appellant. Jno. W. Arctander and John N. Berg, for respondent.

BROWN, J. Action to recover a commission alleged to have been earned by plaintiff in procuring a purchaser for certain real estate belonging to defendant. The court below, at the conclusion of the trial, directed a verdict for defendant, on the ground that the evidence was insufficient to justify recovery by plaintiff; and the latter appealed from an order denying his motion for a new trial. The only question presented is whether the court below erred in so directing a verdict.

The facts, briefly stated, are as follows: Some time in the fall of 1905 plaintiff and defendant had a conversation with reference to the sale by defendant of a tract of land owned by him in the city of Minneapolis. The result was an agreement on the part of defendant to sell the same for the sum of $18,500, and to pay plaintiff, should he procure a purchaser at that price, the usual commission allowed real estate brokers. Some time thereafter plaintiff entered into negotiations with one T. Gulbrandsen and endeavored to make a sale of the property to him. Gulbrandsen offered the sum of $15,000, but the offer was rejected by defendant upon the same being communicated to him. After further negotiations between plaintiff and Gulbrandsen, the latter offered to take an option on the property for 30 days at the sum of $18,500, $25 to be paid down. Defendant rejected this proposition also; but suggested to plaintiff that he induce Gulbrandsen to make a payment of $500. Plaintiff communicated this to Gulbrandsen, whose reply was, "Well, never mind, let it be for a few days. Drop the matter for a few days." Soon after this Henry J. Gjertsen called upon defendant, and after some negotiations entered into an executory con110 N.W.-5

tract for the purchase of the property for the sum of $18,000, $500 of which was paid in cash. The evidence tends to show that Gjertsen in fact represented Gulbrandsen, and made the purchase for him, though in his own name, but defendant did not so understand, and Gjertsen assured him that the purchase was solely in his own interest, and in consideration of that fact, and the further fact that he would not be required to pay an agent's commission, defendant reduced the price from $18,500 to even $18,000. Gjertsen made the cash payment of $500, and a contract for the sale of the land was then properly executed. In the course of two or three weeks, Gjertsen assigned this contract to Gulbrandsen, the person with whom plaintiff had negotiated, and who subsequently paid the purchase price and obtained a deed of the property. About six weeks later plaintiff discovered the fact that the property had been sold to Gulbrandsen through the Gjertsen transaction, and he made claim to a commission, asserting that he was the procuring cause of the sale; that Gjertsen was the representative of Gulbrandsen, in fact his agent; and that the transaction was carried on in his name for the purpose of depriving plaintiff of a commission. On this evidence the court below held that no cause of action was shown in plaintiff's favor.

A careful consideration of the record and the authorities bearing upon the question presented leads to the conclusion that the trial court correctly disposed of the case. There is no question but what plaintiff was authorized to make a sale of this property, and, had he procured and presented a purchaser ready, able, and willing to make a puchase on the terms prescribed by defendant, viz., $18,500, he would have earned his commission, whether the transaction was closed by him or by defendant. But plaintiff at no time presented Gulbrandsen as a purchaser ready or willing to purchase the property on the prescribed terms. His first offer was $15,000, which was rejected. He next attempted to obtain an option on the property, which defendant also rejected. Upon being informed that defendant had rejected his last offer, he requested that the matter be dropped for a few days; and within the next few weeks Gjertsen entered into the contract referred to, through which Gulbrandsen finally acquired title to the property. Plaintiff was not therefore entitled to a commission on the theory that he procured a purchaser ready and willing to buy the property at the price fixed by defendant. Putnam v. How, 39 Minn. 363, 40 N. W. 258; Cullen v. Bell, 43 Minn. 226, 45 N. W. 428; Fairchild v. Cunningham, 84 Minn. 521, 88 N. W. 15. But plaintiff contends that he was in fact the procuring cause of the sale actually made, and is entitled to his commission, even though defendant did not know at the time of closing the transaction with Gjertsen that plaintiff's efforts were instrumental in bringing