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judgment in opposition to an agreement or representation of a party or his attorney is such a fraud that the parties will be restored to their former position is applicable whenever the defendant, on account of the agreement, fails to answer, or, after answerfng, fails to attend the trial: Pearce v. Olney, 20 Conn. 544; Rogers v. Gwinn, 21 Iowa, 58; Edmondson V. Moseby, 4 J. J. Marsh. 497; Weirich v. De Zoya, 2 Gilm. 385; Dobson v. Pearce, 12 N. Y. 156; 62 Am. Dec. 152; Dobson v. Pearce, 1 Abb. Pr. 97; or when the person against whom the recovery has been had was a garnishee, vbo, being summoned, had answered, showing that he had no funds of the defendant in his hands, and had thereupon been assured that no further proceedings had been taken against him: Pelham F. Moreland, 11 Ark. 143. Where A was sued upon a note and mortgage, and the plaintiff, for a valuable consideration, released bim from personal liability, but took judgment in violation of his contract, and issued execution thereon, such execution was restrained, on the ground that it “was against conscience for the mortgagee to retain Ais advantage": Hibbard v. Eastman, 47 N. H. 507; 93 Am. Dec. 467. It makes no difference that the agreement is void because made on Sunday, or was oral, when the rules of the court required all stipulations to be in writing. If it can be shown that it was successfully employed to prevent the defendant from making his defense, then the plaintiff will not be allowed to retain the advantage it has secured him: Blakesley v. Johnson, 13 Wis. 530. In one case it was held that a judgment would not be relieved on an allegation that it was entered in violation of an agreement between counsel, unless it was further averred that the counsel were authorized to make the agreement, or that it had been subsequently ratified by the parties: Anderson v. Oldham, 82 Tex. 228. This decision seems to us unsound in principle. Each of the parties may reasonably believe that the attorney of the other is authorized to represent him in the various stages of the proceedings, and cannot be expected to call for any other evidence of his authority to act than the fact that he has appeared in the action for his client, and if, through misapprehension respecting the apparent authority of an attorney, a judgment should be procured in violation of an agreement made by bim, no court of equity ought to hesitate to grant relief therefrom, and to place the party in the same position as he was in at the time of the making of the agreement upon which he relied. There may, indeed, be causes in which the allegations of the complaint are so explicit that the defendant is not justified in relying upon representations made to him in necessary conflict there with. Thus, where a senior mortgagee was made a party defendant under a complaint alleging that any lien held by him was junior and subordinate to that of the mortgage sued upon, it is said that he had no right, as against this allegation, to rely upon statements made by counsel for the junior mortgagee to the effect that he was made a party only for the purpose of barring his equity of redemption under a judgment for costs held by him and constituting a lien upon the property, and therefore that his failure to plead his senior mortgage was inexcusable neglect, and he cannot be relieved from a judgment entered against him in default of such plea, and the effect of which must be to give precedence to the junior mortgage: English v. Ald. rich, 132 Ind, 500; 32 Am. St. Rep. 270. It was also held in one case that a wife had no right to rely upon representations made by her husband pending a suit between them for divorce with respect to the property owned and acquired by them since their marriage, and that sbe could not avoid a judgment rendered in such suit in accordance with the representations made by her husband respecting the charac ter and amount of their community property, though she was de ceived thereby, and by such deceit and her confidence in him wa prevented from making the requisite inquiry before the original judgment was entered to ascertain the existence of all the comme nity property in which she was entitled to share. It was said that she was guilty of inexcusable carelessness in relying upon bis state ments: Champion v. Wood, 79 Cal 17; 12 Am. St. Rep. 126. The case was clearly one in which to punish the carelessness of a wife in be lieving her husband was to reward his deliberate perfidy, and we think it would have done less discredit to the "conscience of the cbarcellor" had be placed his decision on some other ground.
OFFICERS.-JUDICIAL AND MINISTERIAL AOTS are dle cussed and distinguished in the extended note to Flournoy. v. Jeffer Bouville, 79 Am. Dec, 472-476.
ESTATE OF CHAPOTON.
(104 MICHIGAN, 11) DESCENT-CHILDREN WHO ARE.-The word "children,” as used in a statute providing that if the intestate shall leave do issue, father, or mother, his or ber estate shall descend, subject to the provision therein made for the widow or husband, in equal shares to his or her brothers and sisters, and the "children” of deceased brothers and sisters, by right of representation, does not include the grandchildren of a deceased brother or sister of the intestate.
Griffin & Warner, for the appellant.
12 HOOKER, J. This record raises the question of the right of grandchildren of a deceased brother to inherit a portion of the estate of the intestate, in a case where brothers and sisters of the intestate survived him. This depends upon the construction of the word "children” in the second subdivision of section 5772 a of 3 Howell's Statutes, which provides that: "If the intestate shall leave no issue, father, or mother, his or her estate shall descend, subject to the provision herein made for the widow or husband, if a widow or husband survive the deceased, in equal shares to his or her brothers and sisters, and the children of deceased brothers and sisters, by right of representation."
Howell's Statutes, section 2, subdivision 1, provides that, in the construction of the statutes, "all words and phrases shall be construed and understood according to the common and approved usage of the language; but technical words and phrases, and such as may have acquired a peculiar and appropriate meaning in the law, shall be construed and understood according to such peculiar and appropriate meaning."
( 454 )
The commonly accepted definition of the word "child” is, “a son or a daughter; a male or female descendant in the first degree”: Webster's Dictionary. “Grandchildren" are rarely called "children,” the word "descendants” being 13 ordinarily considered more comprehensive than the word "children" or "grandchildren"; and the term "children” cannot be said to have a technical or peculiar meaning in the law, though it has been held to extend to "grandchildren” in some cases. In Bouvier's Law Dictionary, title “Child,” it is said: "The term 'children' does not ordinarily and properly speaking, comprehend 'grandchildren,' or issue generally, yet sometimes that meaning is affixed to it in cases of necessity": In re Curry's Estate, 39 Cal. 529; Adams v. Law, 17 How. 417. We shall find this statement of Bouvier confirmed in many cases involving wills, although cases are not rare where the term "children” has been held coextensive with “issue” or "descendants.” Such holdings are not put upon the ground that the word "children” has a technical or peculiar meaning in the law, but because such meaning is necessary to give effect to the instrument, or because of an evident intent upon the part of a testator. It is in deference to the rule that the intent is to be sought after and given effect in the construction of wills, which may be done to the extent of holding illegitimate children to be included in the term "children,” though the law ordinarily excludes them: See Bouvier's Law Dictionary, tit. "Child," subd. 3; In re Curry's Estate, 39 Cal. 529; 4 Kent's Commentaries, 345. In Reeves v. Brymer, 4 Ves. 698, cited by counsel, the court said that“ children'may mean 'grandchildren' where there can be no other construction, but not otherwise": Pride v. Fooks, 3 De Gex & J. 252.
In this connection, we may profitably consider the statute under discussion. The first subdivision provides that property shall descend to the children of the intestate, and to the issue of any deceased child by right of representation. The same subdivision declares that, if no child of the intestate be living at his death, his estate shall descend to all his other lineal descendants, etc. Here it is noticeable 14 that the word "child” is unquestionably used in the ordinary sense. The third subdivision provides that if the intestate shall leave no issue, husband, widow, father, mother, brother, sister, nor children of brother or sister, his estate shall descend to his next of kin in equal degree ,where they claim through ancestors equally near. This subdivision again uses the word "children” in close proximity to the term “issue," indicating an understanding of the difference in meaning between them. It also contains clear evidence that it was not the inten.
tion to apply the right of representation to cases where property descends to collateral heirs, beyond certain limits. It also discriminates between collateral kindred of the same degree, by favoring those having the nearest ancestor. It is manifest that, in the opinion of the lawmakers, the right of representation must end somewhere. If not, there would be no occasion for providing for a descent to the next of kin in equal degree. We may think that grandnieces and nephews are too near to be excluded; others might think that the right of representation should be much further extended. It was for the legislature to fix the point where it should end, and we see no way of avoiding the conclusion that this was done intelligently. So long as there are lineal descendants, the right of representation is preserved, but, in dealing with collateral relations, it has been as carefully restricted. The courts of Massachusetts have taken this view of the statute of that state, which is similar: Bigelow v. Morong, 103 Mass. 287.
We do not feel justified in holding that the word "children," where used in the statutes, has the same meaning as the word “issue" or "descendants," and are constrained to affirm the judgment of the circuit court.
McGrath, C. J., Grant and Montgomery, JJ., concurred.
DESCENT-CHILDREN_WHETHER GRANDCHILDREN EN. TITLED TO INHERIT AS-A bequest to children does not include grandchildren, except from necessity, which occurs when the will would remain inoperative unless the sense of the word "children" is extended beyond its natural import: Estate of Hunt, 133 Pa. St. 260; 19 Am. St. Rep. 640, and note; Scott v. Nelson, 3 Port. 452; 29 Am. Dec. 266, and note; Mowatt v. Carow, 7 Paige, 328; 32 Am. Dec. 641, add note. In Douglass v. James, 66 Vt. 21, 44 Am. St. Rep. 817, the word "children" in a will was so construed as to let in a grandson of the testator. See further on this subject the cases collected in the note to In re fagram, 12 Am. St. Rep. 97, 104.