SHERWOOD, J. On the twenty-seventh of July, 1883, the plaintiffs entered into a contract with H. C. Underwood & Co. to make and deliver to them, on the cars at Kalamazoo, an engine and boiler. By the terms of the contract the price of the machinery was to be $1,125, and to be paid in cash when it was set up and in good working order. Underwood & Co. had rented a shop of W. G. Pattison, of Kalamazoo, for a term of years, and the machinery was placed therein and set up, but was not satisfactory on account of defects in the boiler. II. C. Underwood & Co. refused to accept or pay for the same, and soon went out of business. By an arrangement with the defendant Gardner, who was one of the firm of H. C. Underwood & Co., he retained the shop in which the machinery was located, and on the eighteenth day of April, 1884, made an arrangement with the plaintiffs to retain the engine and boiler. The contract was reduced to writing, from which it appears that Gardner agreed to give for the machinery his three notes for $444.27 each, due in the months of October, 1884, and in April and October, 1885, respectively, thereafter. The contract also contains the following clause: "And it is expressly agreed by and between the parties hereto, that the title to, and right of possession of the machinery is to remain and be in said Jarvis, Barnes & Co. until all the purchase price thereof is paid; and that if said Jarvis, Barnes & Co. should consent to permit said M. R. Gardner to retain the possession of the said machinery, said possession shall be for said Jarvis, Barnes & Co.; and that said property is not to be removed from the city of Kalamazoo unless upon the written consent of said Jarvis, Barnes & Co." The machinery was left in the shop with Gardner, and le continued to use it until the month of September, 1884, when he closed his shop at Kalamazoo, and went to Wabash, Indiana, to do business. At the time he left he had failed to make terms with Mr. Pattison for the surrender of his lease of the shop, and the latter claimed some sort of lien upon the machinery for the rent, for which he intended to hold Gardner for the balance of the term. It further appears that the defendant Jordan, who is an attorney at law, was employed by Gardner to assist him in the arrangement of some settlement, if one could be obtained, with Mr. Pattison, and when Gardner left he handed Mr. Jordan the keys to the shop, with the request if such settlement was secured that he should then give the keys to Mr. Pattison. When the first note fell due, Gardner was in Indiana, and the same was returned to plaintiffs protested. Thereupon the attorney for plaintiffs went to Kalamazoo, found the shop locked up with the machinery in it, and Mr. Jordan had the keys with the above-mentioned instruction from Gardner. In an interview with Jordan the latter informed the plaintiff's attorney that he could only surrender the keys of the shop under the circumstances he had stated, and further told plaintiffs' attorney if anything more was required, the attorney would have to see or communicate with Gardner; that he had no authority to give them up upon any other consideration; that he had no possession or control of the machinery. The plaintiffs' attorney asked Mr. Jordan for the keys to the shop, and told him he came to take the machinery. This request was not complied with, and thereupon the complainants brought this suit for the property against these defendants. No personal service was had upon Gardner, but he subsequently appeared in the case and defended. The property was taken upon the writ. A trial was had in the Kalamazoo circuit, resulting in favor of the plaintiffs. The above facts are not substantially contradicted, or in any material sense modified. Jordan testifies that no demand was ever made upon him for the property by the plaintiffs or their attorney; this, however, is claimed to be otherwise. The testimony is not clear upon the point, but if it was material the verdict of the jury would be adverse to the defendants' claim. It is difficult to see of what use a demand would be upon Jordan for the property, so long as he had no control over the machinery, nor authority to deliver, or refuse to deliver it; and we find nothing in the record from any of 60 136 114 206 60 136 124 152 the testimony showing, or necessarily tending to show, any such control or authority. These two facts cannot be assumed for the purpose of charging a party in an action for a wrong, and it was not proper for the court to submit the question of general agency to the jury, when the testimony tends only to show a special one. The judgment will be affirmed as to defendant Gardner and reversed as to defendant Jordan, and he will be allowed to recover his costs in both courts. The other Justices concurred. IN THE MATTER OF THE ESTATE OF WILLIAM SMITH, DE CEASED. Will-Bequest of personally to widow-If accepted, the will stands as to other bequests-Ino. Stat. §§ 5824-5, construed. A widow claiming a legacy bequeathed to her in her husband's will, in lieu of dower, with the residue of his estate to his children, is not entitled to share in his personal estate, as by intestacy. Error to Wayne. (Jennison, J.) Argued February 4, 1886. Decided February 17, 1886. John L. Smith appealed from an order of the probate court of Wayne county, allowing his father's widow one half of the residue of his personal estate, which order was reversed and the claimant brings error. Affirmed, but with out costs. Charles B. Lothrop, for appellant: There are only two points in this case. 1. Whether the sum of $1,000 bequeathed in lieu of dower, is such an interest in the personal property as debars the widow from the benefits of the statute on her accepting it, and 2. Whether the statute [How. Stat. §§ 5824-5] is applicable to wills executed before its passage, but becoming operative after it took effect. These questions are of great importance as there probably will be many wills hereafter probated which were executed before this statute was passed. As this statute seems to be the pioneer as regards limiting a husband's power of disposition of his personal property by will, there has been no adjudication bearing directly on these points. The first question was not relied on in the argument in the circuit, but it was tacitly admitted that, if the statute applied, the judgment of the probate court was correct. Indeed, it seems to me that this money can scarcely be termed an interest in the personal property; it is merely an offer by testator of a sum of money in exchange for something that the widow was as much the owner of as any personal chattel belonging to her. She could take it or leave it, as she saw fit, and had she not relinquished her dower she would not have been entitled to the money, and it would seem as though the statute meant an absolute and unqualified bequest, not one dependent on relinquishment of a right. Suppose this had been given her in lieu of any particular chattel that she owned absolutely, surely this would be no interest in the personal estate. She did not take this as a legatee, but as a purchaser. In some states it is held that she becomes a creditor who is preferred to others; but in this State she stands on the same footing with other creditors: Tracy v. Murray, 44 Mich. 110; but nowhere' has she been considered a mere legatee, and the statute clearly contemplates an election between an absolute legacy and the right given by the statute. Indeed, this construction only places the widow just where she would be if she renounced the sum and took her dower. She would have her dower, presumably of equal value with the money, and also her interest in the personalty. Nor would it prejudice the heirs, as the dower interest by the election passes to them, and the statute should be given a beneficial construction, otherwise, in this case at least, its proposed bounty would prove of no value and the widow would be deprived of all the benefits proposed to be given by its terms, while she would gain nothing, but simply receive, in a different form, what she was already the owner of. The language of the statute is general and broad enough to include all wills, whether made before or after its passage. The general rule is well settled that wills are to be governed by the law in force at the time of the testator's death, and not by the law in force at the time of their execution: Redfield on Wills, 1-406-7; Wigram on Wills, pt. 2, § 4; Parker v. Bogardus, 5 N. Y. 309; Moultrie v. Hunt, 23 N. Y. 395; and that the Legislature has power to affect wills previously executed, but which have not taken effect before the passage of the statute, cannot be doubted: Baptist Union v. Peck, 10 Mich. 341. A will executed while a statute was in force prohibiting disinheriting children, and invalid under its provisions, was held valid under a new law in force at testator's death, abolishing such restriction: Hamilton v. Flinn, 21 Texas, 713; and a somewhat similar case was decided by Judge Story: Adams v. Wilbur, 2 Sum. 266. A statute, changing the rule in Shelley's case, was held applicable to a will executed prior to its passage: Price v. Taylor, 28 Penn. St. 95. The general rule is also recognized in re Elcock's Will, 4 McCord, 39; Houston v. Houston, 3 McCord, 491; Lawrence v. Hebbard, 1 Bradford, 252; De Peyster v. Clendining, 8 Paige, 304; Bishop v. Bishop, 4 Hill, 138; Sherman v. Sherman, 3 Barb. 385; Wakefield v. Phelps, 37 N. H. 295; Moultrie v. Hunt, 23 N. Y. 395; also note to this case; same, Am. Law Reg. vol. 1, New Series, p. 165. It may be claimed that there is departure from this rule in a class of cases arising on statutes now generally in force in all states, changing the old rule that a devise of all the testator's real estate, no matter how broad or comprehensive the language of the will was, only passed the real estate then owned, and did not pass future acquired realty. Some of such cases are Mullock v. Souder, 5 Watts & Sergeant, 198; Gable v. Daub, 40 Penn. St. 217; Battle v. Speight, 9 Iredell, 288. But on an examination of these decisions and the statutes of these states, it will be seen that the question was simply resolved into one of intention, and it might fairly and properly be said that the intention of the testator might be inferred from the well known rule of law in force at the time of execution, and the distinction between such cases, and this, is well expressed, as follows: "A will, so far as form is concerned, would hardly be condemned if it conformed to the law under which it was written. And interpretation must, of course, read as of the time when it was written, but a law would, and does apply irrespective of intention, and takes hold of it only when it goes into effect:" Price v. Taylor, 28 Penn. St. 107. But in other states, similar statutes |