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record of any authentication or probate by any foreign court or officer." This objection being overruled an exception was taken by counsel for the defendant to the admission of the record.

The copy contained, after the seal of Wilder, the testator, the usual attestation of two witnesses, who declare that the will was signed in the presence of each of them, and that it was at the same time declared by him to be his last will and testament, and that at his request and in his presence they signed their names as witnesses thereto. The testator died in New York, and the paper offered for probate in the county of Marquette, in Michigan, purported to be a copy of the will as it had been probated in the former State. The following papers constitute the proceedings in the probate court for the county of Marquette :

"STATE OF MICHIGAN, County of Marquette, 88:

"At a session of the probate court for the county of Marquette, holden at the probate office in the city of Marquette, on Monday, the thirty-first day of October, in the year one thousand eight hundred and eighty-one. "Present: Edward S. Hardy, judge of probate.

"In the Matter of the Estate of Edward C. Wilder, Deceased.

"This day having been appointed by the court for hearing the petition of James E. Dalliba praying, amongst other things, for reasons therein set forth, that a certain instrument, purporting to be a copy of the last will and testament of said deceased, and the probate thereof duly authenticated and heretofore presented to this court with said petition be allowed, filed and recorded. Now come into court the said petitioner and answers, and it satisfactorily appearing by due proof on file, that a copy of the order of this court touching the hearing of said petition made on the seventh day of October last past, had been duly published as therein directed, whereby all parties interested in the premises were duly notified of said hearing.

"And it further satisfactorily appearing to the court, after

Opinion of the Court.

a full hearing upon said petition and on examination of the proofs and allegations of the petitioner, that said deceased was, at the time of his death, a resident of the city of New York, in the State of New York, and died leaving his last will and testament, which was duly approved and allowed in the surrogate court for, in and of the county of New York, in the State of New York, according to the laws thereof, and that he was possessed of estate situate in said county of Marquette, on which said will operates.

"And the evidence touching the premises being materially considered, it satisfactorily appears that said copy of said will ought to be allowed in this State as the last will and testament of said deceased.

"It is therefore ordered, adjudged, and declared by this court that said copy of said last will and testament of said deceased be allowed, filed, and recorded in this court, and that the same shall have full force and effect in this State, as such will, agreeably to the statute in such case made and provided.

"And it is further ordered that the execution of said last will and testament be committed, and the administration of the estate of the said deceased be granted to said Sophia Wilder, the executrix in said will named, who is ordered to give bond in the penal sum of one thousand dollars, with sufficient sureties, as required by the statute in such case made and provided, and that the same being duly approved and filed, the letters testamentary do issue in the premises.

"STATE OF MICHIGAN, County of Marquette, 88:

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Probate Court for said County. "Be it remembered that the annexed and foregoing instrument, being a duly authenticated copy of the last will and testament of Edward C. Wilder, late of the county of New York, in the State of New York, deceased, which was duly allowed, filed, and recorded in said court in pursuance of the decree thereof, of which the foregoing is a true, full, and correct copy.

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"In testimony whereof I have hereunto set my hand and affixed the seal of said court at the city of Marquette, in said county, this thirty-first day of October, in the year one thousand eight hundred and eighty-one.

"[SEAL.]

"EDWARD S. HARDY,

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Judge of Probate."

We can see no defect of jurisdiction in the probate court of Marquette County sufficient to justify the rejection of this copy of the will, or to impeach the action of the probate judge in ordering it to be recorded. There is in the proceedings the full recital of the production of the copy of the will, and that the order for the hearing of the petition, made on the 7th day of October, "had been duly published as therein directed, whereby all parties interested in the premises were duly notified of said hearing." The court further certifies that the probate thereof was duly authenticated "and presented to this court," meaning, evidently, the probate of the will in the State of New York. The certificate further recites that "it satisfactorily appears to the court, after a full hearing upon said petition, and on examination of the proofs and allegations of the petitioner, that said deceased was, at the time of his death, a resident of the city of New York, in the State of New York, and died leaving his last will and testament, which was duly approved and allowed in the surrogate court for, in and of the county of New York, in the State of New York, according to the laws thereof."

This being a recital in the record of the judgment of the court admitting the instrument to probate, certifying that it had been fully proved by the "examination of the proofs and allegations of the petitioner," and that it was duly admitted to record, is sufficient. Unless the necessary parties in such cases could be brought before the court by publication there would be in many cases an impossibility of doing it at all. Grignon v. Astor, 2 How. 319.

There appears to be some controversy in the brief submitted by counsel as to the fact that the copy of the instrument offered in evidence is certified from the office of the register

Opinion of the Court.

of deeds; but as no such objection was made upon the trial of the case it is unnecessary to discuss it here.

The fourth assignment of error is founded upon the rejection of a deed, called a declaration of trust, made by Still Manning and William Wright, which was offered by the defendant. This instrument was signed and acknowledged in the month of November, 1855, and covered the land now in controversy. The deed from Manning and Wright to Wilder, referred to in the second assignment of error, was executed in July, 1860, nearly five years after this declaration of trust. The object of the defendant in offering the latter was to show that the legal title had passed out of Manning and Wright and that Wilder did not get the title by the deed which was made to him. Upon the objection of the plaintiff to the introduction of this deed it was rejected by the court, to which ruling the defendant excepted.

The proposition upon which the defendant sought to introduce this instrument is founded upon certain statutes of the State of Michigan, of a character similar to those common in other States, found in Howell's Statutes, §§ 5563 to 5573 inclusive. They comprise the usual provisions for abolishing uses and trusts, and enact in substance that the use shall vest in the cestui que trust as a legal title, except when otherwise provided. Most of these statutes, however, have relation to implied trusts, and it is not necessary here to go through all of them, nor to enter upon their critical discussion at this time. It is sufficient to say that the paper presented in this case is not a conveyance to anybody, but it purports to declare in express terms that the parties executing it hold the property in trust for themselves and two other persons. It is, therefore, an express trust, and comes within the language of $5578, which reads as follows:

"5578. Every express trust, valid as such in its creation, except as herein otherwise provided, shall vest the whole estate in the trustees in law and in equity, subject only to the execution of the trust; and the person for whose benefit the trust was created shall take no estate or interest in the lands, but may enforce the performance of the trust in equity."

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This declaration of trust evidently contemplated that the legal title remained with the trustees, and that they had the power and authority to sell and convey the property, the profits or proceeds to be divided according to the interest which was declared in the instrument creating the trust. We think the legal title remained in Manning and Wright, until by the deed to Wilder they transferred to him the strict legal title. The deed was therefore properly rejected.

The next and last assignment of error which we propose to consider relates to the production of various deeds conveying the lands in question to persons under whom the defendant claims on account of sales for taxes. These deeds were offered in evidence and rejected by the court, to which ruling the defendant excepted.

The principal ground upon which they were held to be invalid was, that the tax levy under which they were sold included an illegal allowance for extra compensation to Goodwin and Eddie, who were judges of the state court which included within its jurisdiction the county of Marquette. It appeared that the supervisors of that county allowed and paid to them, out of the tax levies, an additional compensation of $400 per annum in excess of their salary. It does not seem to be controverted that, by the law of Michigan, if this sum was included in the assessment and levy of taxes, on account of which the sales were made that these deeds represent, the title based upon them is void. Both parties admit this proposition in argument, and certain authorities referred to in the briefs establish it as the settled doctrine of that State. Lacey v. Davis, 4 Mich. 140; Case v. Dean, 16 Mich. 12; Edwards v. Taliafero, 34 Mich. 13.

In Hammantree v. Lott, 40 Mich. 190, the court said: "A tax deed is void if a portion of the tax for which it was given was excessive and invalid." In the recent case of Silsbee v. Stockle, 44 Mich. 561, the whole subject was very elaborately reviewed by Judge Cooley, of that court, and the principle here stated fully established. The strength of the opinion in that direction may be seen by the following extract from the syllabus of the case: