
    Edgar O. Durfee, Judge of Probate, For the Use of Kate Lantz, v. William W. Abbott and Alexander D. Fowler.
    
      Legacy — Extension of time of payment by adult legatee — Releases sureties of residua/ry legatee, unless made with, their consent — Such, extension by infant legatee will not have like effect, unless ratified after attaining his majority —Evidence—Of age by church record of baptism, — If received without objection, cannot be assailed as incompetentin appellate court — Identity of pa/rtiesmust be shown — And this is a question for the jury — Such record, wJien admissible, is evidence of date of baptism, but not of birth — If infant legatee retains note, received in payment of legacy, after arriving at full age — And in suit on residuary legatee’s bond his sureties' claim to be ■ released thereby — Real question is as to ratification by infant of original arrangement — Such ratification will relate back to time note was taken and discharge sureties — Ratification always a question of intent — If no express ratification of infant’s act is shown — Or act done in reliance upon or in affirmation of the contract for extension — Relay in enforcing claim against sureties on bond will not amount to such ratification, if no elements of estoppel intervene — Executed contract — Confirmation of — Question as to what acts will amount to, one of intention — And should be submitted to the jury.
    
    1. An extension of the time for the payment of a matured legacy, hy a legatee oí full age, by accepting the note of the executor therefor payable at a future date, releases the sureties on the bond of a residuary legatee, unless such extension is granted with their consent. Such action by an infant legatee is not binding on him, and will not release such sureties, unless ratified hy him after arriving at/«¿¿age.
    S. Where a church record was offered and received in evidence, without objection, for'the purpose of establishing the age of a party, objections to its competency, made for the first time in the appellate court, will not be considered. Tn such a case proof of the identity of the parties is essential, and it is error to refuse to submit that question to the jury.
    8. A church record of baptism, when admissible in evidence, is evidence of the date of the baptism, but not of the birth, of the party baptized, though stated therein.
    4. Where an infant legatee accepts the note of the executor in payment of a legacy then due and payable, thereby extending the time for payment, and holds the note after attaining her majority,—
    
      Held, in a suit brought' on the residuary legatee’s bond, in which the sureties claimed to be released from liability by such extension, that the real question was as to the ratification by the infant of the arrangement by which the note was given after she arrived at full age, which ratification, if made, would relate back to the date of the giving of the note, and so affect the undertaking of the sureties as to discharge them from liability.
    6. Ratification always resolves itself into a question of intent, and where no express ratification is shown of the action of an infant legatee in extending the time for the payment ot a matured legacy, and no act done in reliance upon or in affirmance of the contract by which such extension was made, mere delay in enforcing the infant’s claim against the sureties on the residuary legatee’s bond cannot be construed into such ratification, where no elements of estoppel intervene, especially where the infant receives no new consideration nor retains any arising out of the original transaction.
    6. While it has been held that in order to confirm an executed contract it is only necessary to show a distinct acknowledgment or act indicating an intention to be bound thereby, and that if an infant, after attaining his majority, continues to occupy a position only explicable on the supposition that he intends to stand by such a contract he will be considered as having ratified the same, still the question as to what acts will or will not amount to a confirmation is one of intention, proper to be submitted to and determined by a jury under proper instructions from the court.
    Error to Wayne. (Jennison, J.)
    Argued April 22, 1886.
    Decided June 10, 1886.
    Debt. Defendants bring error.
    Eeversed.
    The facts are stated in the opinion.
    
      Alex. I). Fowler, for appellants:
    As to admissibility of record of baptism as evidence and its conclusiveness, cited: Huntly v. Comstock, 2 Root (Conn.) 99; Jacocks v. Gilliam, 3 Murphy (N. C.) 47; Lewis v. Marshall, 5 Peters, 475; Kingston v. Lesley, 10 Serg. & R. 383; Jackson v. King, 5 Cowen, 237; Sumner v. Sebec, 3 Greenl. (Me.) 223; Whitcher v. McLaughlin, 115 Mass. 157; Kennedy v. Doyle, 10 Allen, 161.
    
      Fraser dh Gates, for plaintiff :
    Private records are not evidence unless the maker is called as a witness or his death shown: Wilbur v. Selden, 6 Cow. 162; Merrill v. Ithaca, &c., R. R. Co., 16 Wend. 586; Brew
      
      ster v. Doane, 2 Hill, 537; Jackson v. Evans, 8 Mich. 476.
    The keeping of the note by plaintiff was not a ratification of the original transaction by which she obtained it. She must either receive a direct benefit or ratify the contrac in express terms: Smith v. Mayo, 9 Mass. 62; Tucker v. Moreland, 10 Pet. 75-6; Minock v. Shortridge, 21 Mich. 304; Prout v. Wiley, 28 Id. 164—7; Corey v. Burton, 32 Id. 30.
   Champlin, J.

This suit is brought upon a residuary legatee’s bond to recover a legacy given by the last will and testament of John T. McKeown, deceased, to Kate Lantz.

The case was before this Court at the April term, 1883, and is reported in 50 Mich. 479. Sophia Lantz, who was •one of the legatees for whose use the suit was then prose■cuted, has since dropped out of the case as a party interested. Under the facts, as they appeared in the record before the ■Court, she had no right to recover.

It appeared, as it now appears, that on October 20, 1877, ■the executor gave to these legatees his individual notes for ■the legacies, payable to them two years from that date, with interest. The legacies were payable when the notes were :given, and they signed and gave to the executor receipts stating that they had received from the executor of the ■estate of John T. McKeown, deceased, $250, being the legacy bequeathed them, respectively.

It was held that, by this extension of the time of payment without the sureties’ assent, they were discharged from liability. But it also appeared that Kate Lantz was not 21 years of age at the time the note to her was'given, and therefore she stood in a different position; that she had no power to extend the time for payment, and she did not become of age until after the note given her became due, and unless she did some act, after she came of age, extending the time, or in some other way changing McKeown’s liability, she is not barred of her action; and, inasmuch as the note in her hands was past due when she came of age, the time was not extended by her retaining the note, and that it should not •be held as payment unless so treated in fact.

It will readily be seen that the contest upon the retrial' centered upon the question of the age of Kate Lantz.

On the part of the plaintiff, Kate Lant’z testified that she was born November 5, 1858, and that her full name is Catherine Sophia Barbara Lantz; that her father’s name is Jacob Lantz, and her mother’s Barbara Lantz; and that her parents lived on Clinton street, in Detroit, when she was born.

Sophia Smith, a sister, testified that Kate was born in 1858'. Caroline M. Lantz, another sister, testified that Kate was born in 1858, and that her birthday was November 5. She stated that she had seen the entry in the family record made in the family Bible, and had last seen it seven or eight years ago; that the entry read, “ Sophia Catherine Barbara Lantz, born 1858;?’ that the record of her own birth was entered there, and read, “ Caroline Matilda Lantz, born in 1856 ;” and that the entry of the birth of Sophia read, Sophia Cathr erine Lantz, 1849.”

Mrs. Barbara Lantz, the mother, was sworn for plaintiff, and testified that her age was 65, and was not able to remember the age of her daughters except the eldest; that they had a family record in the Bible, but her husband took it away with him, and she had not seen it since. She states that she was married in 1849, and four of her children were baptized on Clinton street, by the pastor of the German Lutheran Church on Monroe avenue; that Kate was baptized by the name of Catherine Sophia Barbara Lantz. She first stated that the minister’s name was Herman who baptized all four of the children, but afterwards recalled the fact that one was baptized by a minister by the name of Miller, of the Monroe Avenue Church; that she was present when Kate was baptized, as was also Peter Lantz, his wife, Sophia Lantz, and Catherine Schelard.

The defendants, on their part, produced Charles Haas* the pastor of the German Lutheran Church, who testified who were pastors of the church from 1852 to 1862, among whom was Rev. Mr. Miller. He also produced and proved the' church records of baptism from 1852, and since* which record showed the “baptism of Catherine Sophia Barbara Lantz, daughter of'Jacob and Barbara Lantz, born the eighteenth day of November, 1S56, and baptized the fif-> teenth day of March, 1857. The witnesses were Sophia Lantz, Catherine Schelard, and Peter Lantz.” This entry the witness testified was 'in the handwriting of .Herman Miller, who was pastor of the church at that time. The entry appears in the regular order of dates. One date follows another in regular order, and the entries are numbered •consecutively, and the number of the entry read was No. 28, and appears under date of March 15, 1857; the prior date being March 8, and the subsequent date being March 19, 1857. The witness testified that these records belong to the church, and that he has been its pastor since 1862. There was some evidence introduced showing what Kate Lantz and Sophia, her sister, testified about Kate’s age upon that trial, to the effect that she was born in November, 1857.

This record respecting the baptism of'Catherine Sophia Barbara Lantz was admitted in evidence without objection. It is too late now for counsel for plaintiff to claim that it was incompetent evidence, or that it was necessary to show . that Mr. Miller was dead before it could be received.

It was necessary, however, that the defendants should prove the identity of the person baptized as Catherine Sophia Barbara Lantz with the legatee, known as Kate Lantz, and it was necessary for the jury to’ be convinced of that fact. It was therefore error for the court to refuse to submit to the jury the special question, as follows :

“ Is the * Catherine Sophia Barbara Lantz’ named in the records of baptism produced by B.ev. Charles Haas, as having been ‘born November 18, 1856, and baptized on March 15, 1857,’ the same person who prosecutes this suit as plaintiff, and who swears that her full name is Catherine Sophia Barbara Lantz ?” Draycott v. Draycott, 12 Vin. Abr. 89; Birt v. Barlow, 1 Doug. (King’s Bench) 170.

Error is assigned upon the refusal of the court to charge the jury that, if they believed that the record of baptism is true, their verdict must be for the defendants. The court charged that the record was not conclusive evidence of the facts appearing in it, but it was evidence to go to the jury under all the circumstances, and it was for them to give to it what weight they saw fit; and, after considering all the facts, :if they believed the record of the minister was true, it would show the girl was of age, and therefore the plaintiff could not recover. We do not think the defendants can complain ■of this instruction.

The record of a baptism, when admissible in evidence, is evidence of the date of baptism, but not of birth, although stated therein: Wihen v. Law, 3 Starkie, 63; Duins v. Donovan, 3 Hagg. Ecc. 301; Burghart v. Angerstein, 6 Car. & P. 690; Rex v. Clapham, 4 Car. & P. 29; Rex v. North Petherton, 5 Barn. & C. 508; and the date of baptism was equally as important to defendants as that of the birth; for, if she was the person baptized on the fifteenth of March, 1857, she would be 21 years of age before the note matured in October, 1879.

Defendants’ counsel also requested.the court to charge the jury that if they found from the evidence that Kate Lantz gave John McKeown, executor of the estate of John T. Mc-Keown, a receipt dated October 20,1877, for her legacy, and at or about the same time received his individual note for said legacy payable October 20, 1879, and kept said note two years after she became of age, this was such an extension of time, without the-consent of the sureties on McKeown’s bond, as would discharge them from all liability ; and their vei'dict must be for the defendants, Abbott and Fowler. And he further requested the court to charge that when a minor holds a note a long time after she becomes of age, and does not disaffirm the contract, she being the active party, she is considered in law as ratifying the contract; and also that, if the jury should find that Kate Lantz became of age before the note became due (October 20, 1879), they must find for the defendants, Abbott and Fowler, and in that case it did not matter when the note was given.

These requests do not state the correct principles of law to be applied to the facts of this case. Under any view of the testimony, Kate Lantz was not of full age when the note was made and the receipt given. She was then incapable of giving such binding assent to an extension of time as would discharge the sureties, or of receiving the individual note of the executor in absolute payment of the legacy. The question, therefore, is, did she, after she became of age, ratify the arrangement by which the note was given ? If she did, the ratification would relate back to the time of the transaction, and so affect the undertaking of the sureties as to discharge them from liability.

Batification always resolves itself into a question of intention. The question, therefore, for the jury to determine was whether the facts were such as to justify an inference, properly to be drawn from them, of an intent on the part of Kate Lantz to ratify the reception of the note as payment of her legacy.

Where no express ratification is shown, and no act done in reliance upon or in affirmance of the contract entered into by an infant, mere delay in proceeding to enforce her claim against the sureties cannot be construed into a ratification where there are no elements of estoppel that intervene; especially where the infant has not received any new consideration nor retains any consideration arising out of the original transaction. In this case McKeown’s note did not give-her any greater right of action against him than she had before. She was relinquishing a security which she had under the bond against the sureties, and receiving in its-stead a negotiable note in which the day of payment was deferred. This, perhaps, would have been a sufficient consideration between parties capable of contracting; and, Had she been of age, it certainly would have been sufficient to-discharge the sureties in the bond, if made without their assent or approval.

There is some testimony from which the knowledge, if not the assent, of at least one of the sureties might be inferred. It was proven that both the receipt and note were in the handwriting of one of the sureties, but, as this point was not made prominent, and was not relied upon, it need not be discussed now.

So far as the contract which was made between McKeown, the executor, and Kate Lantz affected the residuary legatee’s bond, it was an executed contract, and it has been held that, in order to confirm an executed contract of an infant, all that appears to be necessary is to show any distinct acknowledgment or act indicating an intention to be bound by the contract ; and if the infant continues, after coming of full age, to occupy a position which is only explicable upon the supposition that he intends to stand by his contract, it will be considered as a ratification of an executed contract. 1 Story, Cont. (4th ed.) §§ 69, 72; Tyler, Inf. & Cov. §§ 40, 41; Norris v. Vance, 3 Rich. Law, 168. But, whether the contract be executed or executory, the question as to what acts will or will not amount' to a confirmation is one of intention, and is one proper to be submitted to and determined by a jury under proper instructions from the court.

The judgment must be reversed, and a new trial granted.

Campbell, C. J., and Sherwood, J., concurred. Morse, J., did not sit.  