legal titles can be tried, and where the probate order by which defendants' legal title is sustained cannot be questioned collaterally, for which reasons complainant has no adequate remedy at law in defending the ejectment cases against it. While the latter contention is questioned by defendants, we think the rule that probate judgments in partition cannot be collaterally attacked is fairly applicable to the proposed defense, if attempted in the ejectment cases. Persinger v. Jubb, 52 Mich. 304 (17 N. W. 851); Parkinson v. Parkinson, supra; and Morrill v. Morrill, 20 Ore. 96 (25 Pac. 362, 23 Am. St. Rep. 95); also found in 11 L. R. A. 155, where numerous authorities are cited.

The infirmity charged against the probate order by complainant is that at the time of making said order the three children of Jane Parkinson, Charles A., Edward A. (father of defendants), and Ida, were all minors, and no notice of the proceeding, by citation or publication was given them, nor was any guardian ad litem appointed for them, and it is therefore of no binding force or validity as to them, while it is binding upon Jane Parkinson and all claiming under her, conclusively establishing that she never had any title but a life estate in the realty set apart to her, and her interest in it, as also that of any claiming through or under her, ended on her death, To sustain this theory it is contended that, as to her, the probate order by which she is bound related back, speaking and taking effect from the time of the death of her father, as would his will if legal; that "under the law it would have been imperatively necessary that this one-third interest should have been immediately inherited by some one" and, she only receiving a life interest, her infant children, as became manifest at the time she consented to the order, were the only persons who could inherit said third subject

to her life estate, which "destroys the very foundation of counsel's claim that their client in any manner or form obtained title by, through, or under Jane Parkinson." Complainant's counsel are equally positive that their client did not, in any manner or form, obtain title through or under her, as we gather from the following statements in their briefs:

"If Jane Parkinson never had any interest in this property, except a life estate, it is impossible that she should have transmitted any interest in the remainder to these defendants. This for the plain reason that she never possessed any such interest to transmit. It having been authoritatively and conclusively established that she at no time had any interest in this property except a life estate, it is plain that defendants could take nothing from her. It cannot be claimed that she could have transferred anything by deed. If she could not do it by deed, she could not do it by consenting to a probate order.

"We are therefore forced to the conclusion that counsel are in error when they undertake to base their rights upon a supposed transfer from Jane Parkinson to them, through the medium of her consent to this order. But this is precisely what they do claim; and it is on this claim that they base their title. * * * We stand in the shoes of the infant children of Jane Parkinson, who, at the time of the making of the probate order in question, confessedly had an interest in the estate of Alvah Ewers, and who were not made parties to the partition proceedings."

Counsel also state "the order can get no support from the will, for it is admitted that this is absolutely void," and in that connection contend that because said order is void as to complainant's grantees, it became the owner of their remainder by proper conveyances from them. It is unquestionably the law that, upon the death of Alvah Ewers, all his estate was immediately inherited, and title to it vested in some one at that time, but it is clear no title to any of it could

have vested in his daughter's children at the time of his death, because none of them were then born. It is undisputed that if these three children of Jane E. Parkinson were legally interested, or had any property rights in their grandfather's estate prior to or at the time this order of partition was made, it was without jurisdiction as to them and a nullity (Prince v. Clark, 81 Mich. 167 [45 N. W. 663]); but if they had no interest, neither they nor those holding under them are in a position to question its validity. Their grandfather, Alvah Ewers, died intestate in 1851, over 13 years before the order was made. The will by which he sought to dispose of his estate was concededly void and or no effect. Under the statute of inheritance, title to any real estate he left passed at once to his three surviving children, William, Charles, and Jane (postea Parkinson), his heirs, upon whom the law cast the real estate immediately upon the death of the ancestor, subject to his widow's right of dower. His daughter Jane was not then married, and her three minor children, who it is now claimed should have been made parties to the partition proceedings in 1864, were not then in existence.

The fact that Alvah Ewers' widow was permitted to, and did until 1864, control, use, and enjoy his estate which he had vainly sought to give her in trust by his invalid will could not militate against title vesting in his heirs immediately upon his death, according to the law applicable to one dying intestate.

Under the rule laid down in Casgrain v. Hammond, supra, where the subject is fully discussed and numerous authorities cited, the whole scheme of this will for disposition of testator's real property was invalid. The land having been devised for a purpose the law will not permit, on the death of the testator it passes to his heirs, and must be distributed under the statute. In Parkinson v. Parkinson, supra,

wherein this court held that the probate order, or decree, was made binding by her consent and decided her tenure to be but a life estate, though not directly essential to the issue then litigated, it was said:

"Had she raised the question on the proceedings for partition, and appealed from the decree of the probate court, as she might have done under the statute (3 Comp. Laws, § 9458), it is probable that she would have prevailed."

So far as this record discloses, Jane E. Parkinson had a good title to an undivided one-third interest, in the real estate of which her father, Alvah Ewers, died seised, from 1851 until the time of the probate proceedings in 1864, and could, at any time during that period, have conveyed a good title thereto. In the meantime she married and bore the three children, Edward A., Charles A., and Ida. Her control and right to dispose of the property which she inherited from her father were not restricted or affected by the fact that she had children who were her prospective heirs. Their knowledge or consent was not essential to authorize her to mortgage it, lease it, sell it absolutely, or consent to an order, or decree, of partition in the probate court which would limit her to its use and enjoyment for life and restrict it in remainder to those of her children who might be living at her decease. The order to which she consented, and by which this court held she was bound because she consented, was in harmony with the desire of her father as expressed in his void will, but it did not validate the will, nor was it binding on her by reason of the will, for as counsel for complainant well say:

"The order can get no support from the will for it is admitted that this is absolutely void."

By the order in question, making final division of her father's estate, with her consent one-third was

assigned to Jane Parkinson for life, remainder limited to her lawful heirs in fee simple. Her three children as prospective heirs then first became legally interested in their grandfather's estate. Whether any of them would actually be heirs was yet uncertain, for no one is heir of the living. The nature and validity of the two estates thus created out of this one-third, one in possession and one in expectancy, only suspending alienation for one life in being, are too well settled in this State by statute and decision to require discussion.

We are well satisfied that Jane Parkinson's three children (her heirs apparent) are not shown to have had any legal interest in their grandfather's estate prior to the probate order, or decree, in question, and the same is not open to attack on the ground that they were not made parties in the partition proceeding.

The decree sustaining defendants' demurrer and dismissing complainant's bill is affirmed, with costs.

BROOKE, C. J., and MCALVAY, KUHN, STONE, OSTRANDER, BIRD, and MOORE, JJ., concurred.

ROBBINS v. MAGOON & KIMBALL CO.

1. MASTER AND SERVANT-NOTICE TO EMPLOYER-KNOWLEDGE—EVIDENCE-ANIMALS.

Knowledge possessed by a barnman and a teamster of defendant who had control and charge of its mule, that the animal was vicious and likely to kick, was charge