ant agreed to carry out Mr. Wood's expectation. Assuming that there was a partnership, the authority of a partner to make lawful contracts for the firm should not be held to authorize the making of unlawful contracts, without the knowledge of the other partner. The contract was signed by all three, Wood, Minthorn, and Haines, and the rights of the parties must be determined by its terms. Nowhere in the contract is there an express agreement on the part of defendant to pay these taxes; and to find such agreement we must infer it from the fact that the conveyance is subject to taxes, which could create no burden or incumbrance upon the title conveyed, and because, as argued by defendant, the inclusion of such taxes would be idle and meaningless, unless it should be held that "subject to all taxes assessed against the contract implied the further clause, "which said second party assumes and agrees to pay."

It is a familiar rule of construction that contracts shall be so interpreted as to make them valid, rather than illegal. As said in Archibald v. Thomas, 3 Cow. (N. Y.) 284:

"If a contract is susceptible of two constructions, one of which will bring it within, and the other without, the statute of usury, the latter construction should be adopted."

We think this contract is fairly susceptible of the construction that "subject" to the taxes on the contract has the same significance as subject to "the timber deed,' and that the contract will be fully satisfied by a deed containing the precise language of the clause in question.

In the case of Dingeldein v. Railroad Co., 37 N. Y. 575, relied upon by defendant, the property of a partnership, consisting of a railroad franchise, a road partly built, cars, horses, sleighs, etc., were transferred to a corporation "subject to the payment by the parties of the second part of all the money which the partnership are bound to pay on account of sewers.' This was held to constitute an agreement to pay the indebtedness. This is quite different from the present case, where the lan

guage relied upon relates to the character of the deed and its terms, to be delivered after the payment of the entire consideration for the deed, with the lawful interest expressly reserved.

The decree is affirmed.

MOORE, C. J., and STEERE, MCALVAY, BROOKE, STONE, and OSTRANDER, JJ., concurred. BIRD, J., did not sit.

HALE v. HARRIS.

1. JUDGMENTS-COMPETENCY-CONCLUSIVENESS - INSANE PERSONS -RES JUDICATA-PROBATE COURTS-ESTATES OF INCOMPETENTS. A decree of the probate court adjudging a party incompetent is not conclusive on a stranger to the proceedings, but is com. petent evidence.

2. DEEDS-CANCELLATION OF INSTRUMENTS--UNDUE INFLUENCE—

EVIDENCE.

Where defendant to a bill to set aside her interest in a deed for fraud and undue influence on the ground of the grantor's incompetency had complete domination over the alleged incompetent, who was mentally and physically weak, and where defendant swore that she paid half the consideration for the deed, the incompetent the other half, and the deed was executed to both jointly, but it appeared that the alleged incompetent at the same time drew from his bank an amount sufficient to cover the entire consideration, and that defendant, who was familiar with his affairs, could not account for his expenditure of the remaining half and also failed to produce satisfactory evidence that she had as much money as she claimed to have paid, the conclusion that she procured the insertion of her name in the deed by undue influence is justified.

Appeal from Wayne; Donovan, J. Submitted January 25, 1912. (Docket No. 32.) Decided March 12, 1912.

Bill by Sanford Hale and William Hale against Mary E. Harris to set aside defendant's interest as grantee in a deed conveying real property jointly to defendant and Richard Hale, deceased. From a decree for defendant, complainants appeal. Reversed.

Bush & Bush (Harvey S. Durand and N. Calvin Bigelow, of counsel), for complainants.

James H. Pound, for defendant.

BLAIR, J. Complainants, as heirs at law of Richard Hale, deceased, instituted this suit to set aside the interest of defendant in certain real estate conveyed, on August 16, 1906, by one Maria Murtagh, for an actual consideration of $1,400, to said Richard Hale and said defendant as joint tenants.

The grounds for relief alleged are, briefly, that said Richard Hale paid the entire consideration, and that defendant procured the insertion of her name as a grantee by fraud and undue influence, and because of the mental incompetency of said Richard Hale. Defendant's answer denies the alleged mental incompetency, fraud, and undue influence, and

"Insists that she paid $700 of said consideration, she taking the money from her shopping bag, and that the said Richard Hale paid but $700, so that each of the grantees were equal owners of said land, and so purposely and knowingly became, and that they purposely made the same a joint tenancy at the joint will and desire of each."

In June, 1900, Richard Hale moved to Detroit from Shiawassee county and married one Caroline Cody as his second wife. At that time he was worth upwards of $2,500. May 27, 1905, he suffered a stroke of paralysis. Caroline Cody Hale, his wife, died in June, 1906, about one year after the stroke, and two days before her death

Mary E. Harris, her sister, the defendant in this case, came to the home of her sick sister and remained there until she and Richard Hale took possession of the property which is the subject of this suit. On the 7th day of June, 1906, a petition for administration was filed, alleging that "Said Richard Hale, husband of said deceased, is a paralytic and an unsuitable and incompetent person to administer said estate."

Indorsed upon this petition was the following:

"We hereby consent to and join in the foregoing petition. Mary E. Harris" and others

Some time from the 15th to the 25th of June, 1906, defendant arranged with Mr. Eaman, a real estate man, to purchase the property in question, and Mr. Hale paid $25 "to bind the bargain." They took possession about August 29th thereafter. On the 25th day of July, 1906, Sanford Hale filed a petition for the appointment of a guardian of the person and estate of said Richard Hale on the ground of mental incompetency. A citation was served on said Richard on the same day, in the presence of defendant, who fully understood its contents and purport. The hearing upon this petition was adjourned from time to time to December 10th, when defendant and said Richard were sworn, among other witnesses, and thereupon Judge Durfee decreed that said Richard was mentally incompetent, and appointed a guardian as prayed.

On the hearing in this cause in the circuit court, there was the usual conflict of testimony upon the question of Mr. Hale's mental competency. In his opinion for a decree, the circuit judge found:

"First. That Mr. Hale was fully competent to buy and deed and deal in such property; in fact, the purchase was in June, before any application for or guardianship papers had been mentioned.

"Second. That such a man, who had provided liberally for his well-to-do sons, and needed a home and care, did perfectly right to make the joint purchase, and insure his care and comfort thereby, at a time when money is a small compensation for attention.

"Third. The Supreme Court cases cited are neither one in direct point, and relate to immoral conduct in no way relating to this home purchase.

That

"Fourth. The care, nursing, and companionship would be left unrewarded, if the deed were set aside. would, under the proofs, be an unreasonable act."

In accordance with this opinion, a decree was entered dismissing the bill of complaint, and complainants have appealed therefrom to this court.

Counsel for complainants contend that the decree of the probate court was a final and conclusive adjudication that Mr. Hale was mentally incompetent, and that such decree relates back to the time of filing the petition. Defendant was a stranger to those proceedings and not concluded by them. As to strangers, the probate decree would only be evidence of the mental status of the alleged incompetent person in transactions had after its entry. The probate proceedings were only competent as part of the history of Mr. Hale, and as bearing upon the conduct of defendant towards him; she having had full knowledge of the proceedings from the outset.

We should hesitate to find upon this record that complainants had established the fact that Mr. Hale was mentally incompetent to agree with Mrs. Harris for the purchase of the property in question in joint tenancy. We are satisfied, however, that he was quite weak mentally as well as physically, easily susceptible to undue influence, if defendant chose to exercise it over him, and that he was under her influence to such an extent that he was afraid to express himself in her presence, and that her mind and will completely dominated his. With reference to the negotiations leading up to the purchase and the purchase itself, the weight of the testimony is that she was the moving party, and spoke for him as well as herself, and her testimony as to this transaction furnishes a test of her good faith.

It is not pretended that Mr. Hale intended to make defendant a present of a half interest in the real estate as