or greater than, the amount of the debt. This is simply stating the first proposition in a different way.

The deed speaks from the time of delivery. At that time, Mrs. Emmons was not the sole creditor of the estate. But, aside from this consideration, the position of appellants is fully met by the statement that the deed was a voluntary conveyance, without consideration.

Appellants say that, because Mrs. Emmons caused the deed to be recorded shortly after the death of her husband, she should now be held to be estopped to deny its validity. Appellants fail to point out how their conduct has been influenced through reliance upon this act of Mrs. Emmons. Her own conduct, after the deed was recorded, was the same as it would have been had the deed not been recorded.

As grantee of a life estate under the deed, she was entitled to possession of the description conveyed. As widow of Alfred Emmons (in the absence of the deed), she was still entitled to occupy the premises until some steps were taken to assign her dower. 3 Comp. Laws, § 8929 (4 How. Stat. [2d Ed.] § 10921); Benedict v. Beurmann, 90 Mich. 396, 402 (51 N. W. 461).

In this proceeding, however, Mrs. Emmons is neither asserting nor denying the validity of the instrument. The suit is brought by the administrator, who finds that there are debts of the estate which he is unable to satisfy without having recourse to this piece of real estate. The attitude of Mrs. Emmons is not important, and the fact that she happens to be the principal creditor of the estate has no bearing upon the rights or duties of complainant in the premises. If, however, the whole proceeding be considered as one taken in the interest of the widow, we see nothing calling for criticism in her course. She has a legal right to repudiate the deed (if she can do so) and to stand upon her rights as a creditor and as a widow entitled to her statutory rights.

It is said by appellants that the claim of Mrs. Emmons was proved by a fraud on the estate. We think that

question is foreclosed. She filed her claim before the commissioners on claims, where it was allowed at a certain sum. Her stepchildren (appellants here) appealed from such allowance to the circuit court, where the claim was reduced and allowed. No appeal from that judgment has been taken. Presumably appellants interposed their defense of fraud in the suit at law. At any rate, they had the opportunity so to do, and must now be held bound by the judgment. Moreover, this record contains no testimony tending to cast doubt upon the righteousness of that judgment.

The judgment is affirmed, with costs of both courts. STEERE, C. J., and MOORE, MCALVAY, KUHN, STONE, and BIRD, JJ., concurred.

OSTRANDER, J. (concurring). The statute which is supposed to give the complainant administrator the authority to institute the present suit is 3 Comp. Laws, § 9363 (4 How. Stat. [2d Ed.] § 11074). The deed which he seeks to have set aside evidences, and all parties seem agreed upon this point, a testamentary disposition of property. With some hesitation, I have reached the conclusion that because the conveyance is a deed in form, and has been recorded as such, it may be said that the case is brought within that provision of the statute reading:

"Shall have so conveyed such estate that by law the deeds or conveyances are void as against creditors."

Every testamentary disposition of property is subject to the rights of creditors, although, if made by a last will, no one would suppose that it, or the probate of it, is subject to be set aside, as to creditors, by a decree in chancery. The rights of beneficiaries named in the will are simply postponed, in the settlement of the estate, to the rights of creditors. But in this case the deed, as a deed, is an apparent conveyance of the decedent's entire estate, and no sale of the premises can be made while the Ideed and the record thereof are in existence. For this

reason, I think the proceeding may be treated as a proper

one.

In such cases, deeds are not set aside if the administrator is furnished funds with which to pay claims and expenses. The decree appealed from provides that no sale shall be made if funds are so furnished. It was proper, therefore, that claims not admitted should be proved, so that the extent of the provision, necessary to be made to avert a sale by the administrator, might be known. The largest, and only considerable, claim proven is presented by the widow, presented as a demand for more than $1,400, and allowed at $600. It is a contention of the heirs that the provision made for the widow in the deed made by the decedent was intended to be, and in law is, a payment or satisfaction of her claim; that, having herself caused the deed to be recorded after the death of her husband, she is in the position of one accepting the testamentary provision; that the administrator may not include the amount of her demand, as allowed, in the total of the unpaid debts of the estate.

It appears that her husband's debt to her was incurred soon after their marriage, and before the deed was executed, and was for money; that the husband had then and thereafter no other real estate than that described in the said conveyance. The general rule is:

"If one, being indebted to another in a sum of money, does by his will give him a sum of money as great as, or greater than, the debt, without taking any notice at all of the debt, this shall nevertheless be in satisfaction of the debt, so that he shall not have both the debt and the legacy."

See the rule and its exceptions stated, with citation of authorities, in Snell's Principles of Equity, p. 194 et seq.; 2 Story's Equity Jurisprudence (13th Ed.), § 1122. The rule was asserted by counsel, and to some extent applied by the court in Rubert v. Rubert, 126 Mich. 589 (85 N. W. 1118).

The question is whether the rule has any application to

the facts in this case. There is the further question whether, independent of the rule, it can be said that the deed was made and accepted in satisfaction of the debt. See Lapham v. Lacy, 161 Mich. 176 (125 N. W. 738); McNamara v. Trust Co., 148 Mich. 346 (111 N. W. 1066); same case, 155 Mich. 585 (119 N. W. 1074). The rule has no application, because the testamentary disposition considered is not of a sum of money, not of the same nature as the debt, nor is it certain in its value. And the testimony (that of the wife concerning communications made by her to her husband, and by him to her, being excluded) does not lead to the conclusion that there was any promise to pay the debt by the interest conveyed by the deed, nor an acceptance of such interest as a payment.

I therefore concur in affirming the decree.

STURGIS v. STURGIS.

DIVORCE-ALIMONY.

A decree of divorce, on the ground of extreme cruelty, in favor of defendant husband, is affirmed on a consideration of the facts by an evenly divided court.

STEERE, C. J., and MOALVAY, BROOKE, and STONE, JJ., dissenting.

Appeal from Calhoun; North, J. Submitted October 15, 1912. (Docket No. 65.) Decided February 18, 1913.

Bill by Flora R. Sturgis against Joseph Sturgis for divorce. Defendant filed a cross-bill. From a decree

awarding defendant a divorce and adjusting property matters, defendant appeals. Affirmed.

J. M. Hatch & Sons, for complainant.
Winsor & Miller, for defendant.

BROOKE, J. (dissenting). The decree of divorce in this case marks the wreck of the fifth matrimonial venture of defendant. His first alliance was severed by death; the last four through the medium of the divorce court. The first wife died in the year 1900, since which time defendant seems to have acquired the habit of marrying women with whom he had, at the time, very little acquaintance, and of whose antecedents he was wholly ignorant. Having learned after marriage in each case that the union proved unsatisfactory, defendant seems to have experienced as little difficulty in legally ridding himself of his wives as he did in acquiring them. While he was engaged in eliminating the fourth, the complainant, a widow of 40, moved to sympathy by a harrowing newspaper account of defendant's marital misfortunes, wrote a letter to him, and shortly thereafter followed her letter in person. She went to his home and acted as his housekeeper for some weeks prior to his then pending release. This propinquity seems to have been sufficient to engage the attention of defendant, and the expiring flame of connubial bliss was again lighted upon the somewhat battered altar of his heart. This result was doubtless induced, or at least accelerated, by the fact that the complainant represented herself to be a woman of considerable financial substance, and was able, through the possession of a little ready money, to finance the then pending divorce. That divorce was secured by defendant through the payment by him to wife No. 4 of $200, upon condition that she should not appear and contest the granting of a decree to him. In that proceeding, defendant was undoubtedly guilty of a fraud upon the court, and complainant not only