probably have lived had he not been injured, and the loss he sustained by reason of being deprived, by such injuries, of the ability to labor and earn money during the time he probably would have lived had he not been injured."

Counsel for the defendant urge that the damages recoverable in such a case should be only (1) the injury to feelings, pain and anguish of deceased while he actually lived, and (2) the loss of earnings during the remainder of the time that he actually lived. This is an unreasonable limitation. We need not discuss the reasoning by which the result is reached. We have long ago held that prospective damages are recoverable. An injured person may recover for loss of earnings for the period during which the evidence fairly shows that he would have lived but for the injury. This rule would apply to one who should live long enough to try his case, though he should die the following day. But defendant's contention would substitute another rule upon a second trial after his death, should such trial become necessary. Such recovery is based upon the actual damages suffered through the accident. On the first trial the recovery is based upon a probable prospective incapacity for a probable period. After death, such incapacity (and consequent loss) is made certain, where it was only probable before. The period alone remains uncertain. As to pain and mental suffering, it is different. Upon the first trial, the duration of such pain and suffering is uncertain; upon the second, it is definite. As has been already suggested, it is not a new doctrine that prospective damages, when reasonably certain, may be recovered. It is a part of the right that 370 survives under the act, as was held in the Kyes case. Such a construction removes the only objection that can be urged against the view which we have taken of the death act. It gives to the representative the absolute right to the remedy which his ancestor had, instead of leaving it to depend upon the accident of his dependency.

The judgment is reversed and a new trial ordered.

The other justices concurred.

Actions for Wrongful Death where the death is instantaneous, or nearly so, are considered in the monographic note to Brown v. Electric Ry. Co., 70 Am. St. Rep. 676, 677. The elements and meas ure of damages in actions for having caused the death of human beings are considered in the monographic note to Louisville etc. Ry. Co. v. Goodykoontz, 12 Am. St. Rep. 375-383, and the recent cases of St. Louis etc. Ry. Co. v. Haist, 71 Ark. 258, 100 Am. St. Rep. 65; Hebert v. Lake Charles Ice etc. Co., 111 La. 522, 100 Am. St. Rep. 505.

Am. St. Rep., Vol. 104-39

CASGRAIN v. HAMMOND.

[134 Mich. 419, 96 N. W. 510.]

PERPETUITIES.-Under the statutes of Michigan the absolute power of alienation cannot be suspended by any limitation or condition for a longer period than two lives in being at the creation of the estate. (p. 619.)

STATUTES Adopted from Another State, Construction of.-If a statute is adopted from another state, the construction there previously placed upon it has controlling influence, and the courts will presume that the legislature recognized and adopted such construction. (p. 620.)

PERPETUITIES.-Any Suspension of the Power of Alienation not Based on Lives in Being is void, and that power is suspended when there are no persons in being by whom an absolute fee in possession can be conveyed. (p. 620.)

PERPETUITIES-Instance of.-If an estate is conveyed to be held in trust, to control and pay over the income to the grantor during her natural life, and should she die before the period of fourteen years from the execution of the trust, then to divide the net income among five designated persons, and, at the expiration of that term, to convey the property to the same persons or the survivor of them, which conveyance further declares that it is made to satisfy claims existing against the grantor and in favor of the bene ficiaries for moneys received by the former as their guardian, and, before any of them can receive a conveyance of the interest to be conveyed to them by the trustee, he must execute a proper release of all claims against the grantor's estate, this is an attempt to create a forbidden perpetuity, because it is measured by a term of years, and the trustee and the beneficiaries cannot, by joining in a conveyance, give a good title. (pp. 621, 622.)

PERPETUITIES-Effect of Conveyance Attempting to Create. If a conveyance attempts to vest an estate in a trustee to be held in trust for fourteen years and then conveyed to specified beneficiaries or the survivor, it must be adjudged void as an attempt to create a perpetuity, and no interest vests in the trustee or the beneficiaries, and, on the death of the grantor, the property attempted to be conveyed must be regarded as belonging to her estate. (p. 622.)

QUIETING TITLE.-One Having Title to Land, Though not in Possession, may maintain a suit to quiet title as against a trustee and persons claiming under a conveyance which is void because it attempts to create a forbidden perpetuity. (p. 623.)

Suit by A. H. Casgrain and George H. Lee against Charles: F., Florence P., William J., Edward P. and George H. Hammond to set aside a trust deed. The bill was demurred to and the demurrer overruled, and thereupon the defendants appealed..

Brennan, Donnelly & Van De Mark, for the complainants.. Thomas A. E. Weadock, for the appellants.

420 MOORE, J. This proceeding was commenced in chancery by filing a bill of complaint, some portions of which read as follows:

"That during her lifetime Ellen Hammond, now deceased, of the city of Detroit, Wayne county, Michigan, acquired the title in fee and was the owner [of real estate, which is described in the bill of complaint], upon which said described lands and premises the said Ellen Hammond caused to be constructed a building costing . . . . upward of seven hundred thousand dollars, . . . . and was at the time of the death of said Ellen Hammond, and now is, of the value of upward of one million of dollars.

"That on the twentieth day of February, A. D. 1898, the said Ellen Hammond died intestate, leaving no last will, and subsequently William J. Hammond and your oratrix, Annie H. Casgrain, were appointed administrators of the estate, and duly entered upon the performance of their duties as such administrators; that the estate of the said Ellen Hammond has never been closed, nor have the administrators filed their final account or been discharged.

"That the said Ellen Hammond left as her heirs at law George H. Hammond, Charles F. Hammond, William J. Hammond, Florence P. Hammond, Ethel K. Hammond, Edward P. Hammond, and your oratrix, Annie H. Casgrain, all children of the said Ellen Hammond, and your orator George H. Lee, grandchild of the said Ellen Hammond, being a son of Sarah Hammond Lee, who had intermarried with Gilbert W. Lee, and had died prior to the death of Ellen Hammond; and the said heirs at law became entitled in equal proportions to all of the estate of Ellen Hammond, share and share alike.

"That on or about the twelfth day of September, A. D. 1895, the said Ellen Hammond executed to Charles F. Hammond, one of the above-named heirs at law, a warranty deed in form of the lands and premises above described, in which deed the said Charles F. Hammond is described as trustee, and in which said deed the consideration for the conveyance is stated as the sum of one dollar and other considerations, . . . . which deed was recorded 421 in the office of the register of deeds for the county of Wayne on the first day of October, 1895; . . . . and your orators show that, by reason of the recording of said deed as aforesaid in the public records in the office of the register of deeds of Wayne county, the title in fee to said lands appears to be in the said Charles F. Hammond.

"Your orators further allege that they are informed and verily believe, and therefore charge the truth to be, that it was not the intention of the said Ellen Hammond, deceased, to vest the title in fee of the said lands and premises in the said Charles F. Hammond, trustee, and they are informed and believe, and charge the truth to be, that on the same date, and simultaneously with the execution of the said deed to Charles F. Hammond, trustee, by the said Ellen Hammond, the said Charles F. Hammond executed and delivered an instrument in writing, duly acknowledged and witnessed, so that the same was entitled to be recorded in the office of the register of deeds for the county of Wayne under the strict requirements of the law with reference thereto, which said instrument in writing is denominated a 'declaration of trust,' by the terms of which the said Charles F. Hammond did thereby declare, as grantee and trustee in the deed named aforesaid, that he received and held the title to the same property in trust for the purposes in said declaration of trust named, that is to say, to let, lease, manage and control the property according to his best judgment, so as to yield as large an income as possible, and, after paying and discharging the taxes and repairs thereon and expenses in the care and management, to account and pay over to the said Ellen Hammond, during the term of her natural life, the net income derived therefrom at such times as she might desire for her use and maintenance, and, should the said Ellen Hammond die before the expiration of the period of fourteen years from the execution of the trust, then the said net income was to be divided and paid in equal proportions by the said Charles F. Hammond to William J. Hammond, Florence P. Hammond, Ethel K. Hammond, Edward P. Hammond, and the said Charles F. Hammond, and that, at the expiration of the term of the trust created thereby, he should convey the lands and premises in question to William J. Hammond, Florence P. Hammond, Ethel K. Hammond, Edward P. Hammond and the said Charles F. Hammond, or to the survivor or survivors 422 of them, in equal undivided shares, and that the interest of any one or more of the persons named, to wit, Charles F. Hammond, William J. Hammond, Florence P. Hammond, Ethel K. Hammond and Edward P. Hammond, who may decease before the expiration of the trust hereby created, shall pass to and be conveyed to the survivor or survivors of the persons above named, and shall not pass to the heirs or assigns of any one of them who may decease; that the trust hereby created should continue until

the decease of the said Ellen Hammond, and, should she decease before the expiration of fourteen years from the date thereof that is to say, on or before the twelfth day of September, A. D. 1909-then the said trust should continue until the expiration of the fourteen years from the date of said instrument, and in that event terminate at the end of fourteen years from the date thereof. . . . .

"That the said declaration of trust has never been recorded, so that the records of the title to the said lands and premises do not disclose the correct nature and extent of the title which the said Charles F. Hammond has in the lands and premises aforesaid; and your orators are informed and believe, and therefore charge the fact to be, that the said declaration of trust is now in the actual possession of the said Charles F. Hammond, trustee..

"Your orators further show unto the court that the said declaration of trust and the said warranty deed in truth and in fact constitute one instrument, and together show the intent and purpose with which the said Ellen Hammond, deceased, conveyed the title of the lands and premises hereinbefore described to the said Charles F. Hammond, trustee, and she is entitled to have this court so declare; that by the terms thereof the said Ellen Hammond attempted to convey the said lands and premises to the said Charles F. Hammond, trustee, for uses and purposes and upon terms and conditions in violation of law, and especially in violation of the provisions of the statute of this state more specifically described as compiler's sections 8796 and 8797 of the Compiled Laws of Michigan for 1897, being sections 14 and 15 of chapter 237 of said Compiled Laws, pertaining to real property and of the nature and qualities of the estates in real property and the alienation thereof.

"That, immediately upon the death of the said Ellen Hammond, your orators, equally with the other heirs of the 423 said Ellen Hammond, each inherited and became by right the owners in fee of an undivided interest in the said lands and premises by inheritance-that is to say, each an undivided one-eighth thereof; and each of the said heirs of the said Ellen Hammond also became the owners in fee of an undivided one-eighth interest thereof by inheritance, and as such became entitled to have and receive from time to time, as the same accrued, a like proportion of the rents and profits arising therefrom. . . .

"Your orators further show that George H. Hammond died intestate in the city of Detroit in the year 1886, leaving a large