ing said will and distributing said estate, will therefore be set aside and reversed. That all the personal property belonging to said estate, including the proceeds of the sale of said farm, except that mentioned in the second paragraph of said will already distributed, will be divided between Florence Nichols and Della J. Dennis, according to the third paragraph of said will; that is to say, two-thirds thereof to Florence Nichols, and one-third thereof to Della J. Dennis, subject to the payment of the necessary expenses of administration in proportion to the share provided for each in said third paragraph.

"The probate court for the county of Kent will be directed to enter the necessary orders and take the necessary steps to settle and distribute said estate in compliance with this opinion and construction.

"Della J. Dennis and Florence Nichols will recover their costs in this proceeding against Daniel F. Manshaem, including an attorney fee of twenty-five dollars. "Execution therefor will be allowed."

Daniel F. Manshaem now reviews the case in this court under some 33 assignments of error.

BROOKE, J. (after stating the facts). The question involved is whether under a proper construction of paragraphs three and four of the will, the sale of testator's farm during his lifetime worked an ademption or revocation pro tanto so that the proceeds of the farm should pass to the daughters under paragraph three instead of to the sons under paragraph four. We have repeatedly held that the first and most important rule to be observed in construing wills is to ascertain the intention of the testator and to give effect to that intention if it be legally possible. Stender v. Stender, 181 Mich. 648; In re Ives' Estate, 182 Mich. 699; In re Shumway's Estate, 194 Mich. 245 (L. R. A. 1918A, 578); Kirsher v. Todd, 195 Mich. 297; In re Blodgett's Estate, 197 Mich. 455. That intention must be gathered from the whole will, and, where possible, effect must be given to all of the provisions

of the instrument. While the will speaks from the death of the testator and not from its date, construction may often be aided by a consideration of the facts and circumstances existing at the date of the will. At the time the will was made it is obvious that the testator was possessed of personal property not exceeding in value the sum of $800. The provisions of paragraph three indicate that the testator believed that that class of property at the time of his death might be less than that amount, he, therefore, provided that the two sons named in paragraph four should, if necessary, contribute in equal shares a sum sufficient to make up such possible deficiency. After this provision and as a part of paragraph three he used this significant language:

"The provisions made in this paragraph for my said daughters, together with such gifts as I have made them in the past, shall constitute their entire shares in my estate.

In the fourth paragraph he names his executor and provides for a sale by the executor of his farm, adding:

"After said sale has been consummated, I give, devise, and bequeath unto my two sons, Daniel F. and Evril J. Manshaem, the entire rest and residue of my estate, the same to be had by them in equal shares, to have and to hold to them and their respective heirs forever."

After reading these two paragraphs it is impossible to doubt that it was the testator's intention most clearly expressed to give to his two daughters the personal property remaining after certain specific bequests, testator's funeral expenses, administrator's expenses and burial expenses had been paid. This balance from his knowledge of the estate he presumed might not amount to $800 and therefore he provided that his two sons should make up such possible deficiency. He further indicated that the farm should be, by his executor, sold and the entire rest and resi

due of his estate was devised and bequeathed equally to his two sons. The rule as to ademption or the presumption of revocation through a change during the lifetime of the testator in the nature of the property devised or bequeathed does not apply where, as in this case, the proceeds of a certain property and not the property itself is the subject of the gift.

Paragraph four does not constitute a specific devise of the farm to the two sons. Speaking of a similar situation, the court, in the case of Bills v. Putnam, 64 N. H. 554 (15 Atl. 138), said:

"They treat this matter as though there was a specific devise of real estate, or as though the last clause of the will was incapable of disposing of anything but real estate. If that were so, there might be some ground for their position. But when we see there is no specific devise of real estate, and that the last clause of the will, instead of being restricted to disposing of real estate, is a sweeping residuary clause, capable of disposing of both personal and real estate, this whole objection is at once disposed of. The conveying of part of the real estate by the testatrix after the making of the will, with such a residuary clause as is in this will, does not indicate any change of intention on her part in regard to the disposition of her will pro tanto, because she was perfectly aware that the proceeds of this real estate, being in personal property, could pass equally as well under this residuary clause as the real estate itself."

See, also, upon this point, 2 Alexander on Wills, p. 1089; Black's Estate, 223 Pa. 382 (72 Atl. 631); and Miller's Exr. v. Malone, 109 Ky. 133 (58 S. W. 708, 95 Am. St. Rep. 338).

Testimony introduced at the time of the trial as to fugitive statements made by the testator after the sale of the farm to Daniel to the effect that Daniel would never receive any more of his property, are relied upon by appellees as indicating a change in the testator's intention toward Daniel Manshaem and

that he intended by the sale of the farm to Daniel to change the farm into personalty for the purpose of having it go to his daughters under paragraph three instead of to his sons under paragraph four. We have seen that the sale of the farm by the testator during his lifetime to Daniel does not legally affect the rights of Daniel and his brother under paragraph four of the will. If it appeared beyond peradventure (which is not at all the case), that this sale was made with the avowed purpose of disinheriting Daniel and his brother, the result must be the same.

The judgment is reversed, with costs to appellant. BIRD, C. J., and OSTRANDER, MOORE, STEERE, FELLOWS, STONE, and KUHN, JJ., concurred.

CHRISTE v. SPRINGFIELD FIRE & MARINE
INSURANCE CO.

1. COMMENCEMENT OF SUIT-FILING DECLARATION-SERVICE-STAT UTE-LEGISLATIVE INTENT.

Under the judicature act (3 Comp. Laws 1915, § 12407) suits may be commenced by simply filing the declaration with indorsed notice thereon; it being the evident intention of the legislature to change the former rule requiring service by omitting any reference whatever thereto.

2. INSURANCE-FIRE INSURANCE-LIMITATION OF ACTIONS-SERVICE. Where a fire insurance policy limited the commencement of an action thereon to 12 months next after the fire, and the declaration with rule to plead attached was filed five days before the expiration of said time limit, but was not served until four days after its expiration, held, that the action was commenced within the time limited in the policy.

Error to Wayne; Webster (Arthur), J. Submitted

Decided July 17,

Assumpsit by Elmer H. Christe against the Springfield Fire & Marine Insurance Company on a policy of insurance. Judgment for plaintiff. Defendant

Frederick J. Ward, for appellant.
William Friedman, for appellee.

BROOKE, J. This is an action on a fire insurance policy. It was tried by the circuit judge without a jury under a stipulated statement of fact and a judgment was rendered in favor of the plaintiff which defendant here reviews. The policy contained the following provision:

"No suit or action on this policy, for the recovery of any claim, shall be sustainable in any court of law or equity until after full compliance by the insured with all the foregoing requirements, nor unless commenced within twelve (12) months next after the fire."

The fire occurred on September 15, 1916. Suit was thereafter commenced by declaration with rule to plead attached. The declaration was filed on September 10, 1917. It was served by a deputy sheriff of Ingham county on the insurance commissioner of the state on September 19, 1917. It is therefore apparent that the declaration was filed five days before the expiration of the year, but served four days after the expiration of the year limited by the terms of the policy. The sole question presented on this record is whether the learned circuit judge was right in holding that the suit was commenced within one year in accordance with the terms of the policy.

Section 9985 of the Compiled Laws of 1897 as amended by Act No. 168, Pub. Acts 1899, and Act No. 76, Pub. Acts 1905, provided: