with the exhibits and other papers required by this rule to be served in connection there with, the judge who heard said cause or proceeding, or, in the event of his absence or disability, then any other judge authorized to act in any matter in connection with the settl ing of cases for review on appeal as provided by this rule, upon its being made to appear by affidavit, or otherwise, to his satisfaction, that due service of the papers required to be served by the party seeking the appeal was made upon the adverse party or his solicitor of record that all steps required by this rule to be taken by the party so seeking to appeal have been so taken by him within the time required, and of the expiration of the time herein limited for the service of the proposed amendments by said adverse party, shall certify and settle the case in the manner and form as proposed by the party seeking to appeal as the case on appeal therein.

(f) It shall, however, in all cases, be lawful for the parties or their solicitor to agree upon a statement of the facts without procuring the stenographer's minutes of the testimony taken at the trial, and in case of such agreement, and if satisfactory to him, the judge who heard said cause or proceedings, or any other judge with authority in the premises by virtue of this rule, shall sign and certify to such statement, and such statement so signed and certified shall stand as the case for review on appeal to the Supreme Court in such cause.

(g) Whenever the judge who heard said cause or proceeding shall die, resign, or vacate the office before the expiration of his term, or whenever such judge shall be unable to settle such evidence by reason of sickness, absence from the State, or for any other cause whatsoever, within the time prescribed by this rule, such evidence may be settled by any other judge of the court presided over by the judge who heard said cause or proceeding, and in case there shall be no such other judge of such court, or in case of his or their absence or disability from any cause, then such evidence may be settled by any circuit judge of an adjoining circuit.

(h) The judge who heard such cause or proceeding, or any other circuit judge holding court within the judicial district and duly qualified to preside over the court where such cause or proceeding was heard, may grant an extension or extensions of the time for making, settling, signing, and filing such case on appeal for such a period, in addition to the time herein before allowed, as shall not make the whole time in which to settle said case exceed one year from and after the filing and entry of the final order or decree sought to be appealed from, but such extensions shall only be granted upon cause shown and due notice to the adverse party or his solicitor of record of the hearing of the application therefor.

Adopted February 3, 1910.

JUNE TERM, 1909.*

In re FISCHER'S ESTATE.

APPEAL OF FISCHER.

1. ESTATES OF DECEDENTS

COMPENSATION.

EXECUTORS AND ADMINISTRATORS

A trial by jury of the administrator's right to extra compensation is not contemplated by 3 Comp. Laws, § 9438.

2. SAME AMOUNT-REVIEW.

Except in a case of abuse of discretion, the amount of an allowance for extraordinary services, not required of an executor or administrator in the common course of his duty, is for the trial court.

Error to Wayne; Mandell, J.

Submitted June 8,

1909. (Docket No. 5.) Decided July 15, 1909.

Alexander T. Fischer presented his final account as administrator of the estate of Emma Fischer, deceased. From the allowance of the probate court, he appealed to the circuit court. A judgment disallowing certain fees for extraordinary services is reviewed by said administrator on writ of error. Affirmed.

William Look, for appellant.

Russel, Campbell, Bulkley & Ledyard, for appellee.

MONTGOMERY, J. This is an appeal from an order allowing the final account of the administrator. The probate court allowed the administrator his statutory com* Continued from Vol. 157.

mission of $108.77, and for extra compensation, $74.11. The claim of appeal states the ground of appeal to be that the probate court disallowed the sum of $300 for extra compensation to which he was justly entitled. The circuit court on appeal increased this extra compensation to $150; but, it appearing that the administrator had used the funds of the estate in his own business, as a condition of such allowance charged him interest at the rate of 5 per

cent.

Some errors are assigned upon rulings relating to the admission of testimony; but no reason is pointed out in the brief of counsel why these rulings were erroneous, and none occurs to us. It is entirely proper for the circuit judge to possess himself of all the information obtainable as to the manner of the administration of the estate as bearing upon the question of the administrator's right to additional compensation.

But two points are really pressed upon the argument. The first is that the court was in error not to permit a trial of the question on this appeal by a jury. As before stated, the appeal presented the single question of the sufficiency of the allowance for extra compensation. This question is peculiarly a question depending upon the discretion and judgment of the trial court; the statute (3 Comp. Laws, § 9438) providing that in all cases such further allowances may be made as the judge of probate may deem just and reasonable, for any extraordinary services, not required of an executor or administrator in the common course of his duty. The question is not new in this State. As was said in Mower's Appeal, 48 Mich. 441 (12 N. W. 646), referring to this statute, it was never contemplated that when the case reaches the circuit court the judgment of a jury might be substituted for the discretion of the judge in respect to such allowances. This case is followed in Loomis v. Armstrong, 63 Mich. 355 (29 N. W. 867); Wisner v. Mabley's Estate, 70 Mich. 271 (38 N. W. 262); and In re Brewster's Estate, 113 Mich. 561 (71 N. W. 1085).

It is urged that upon this record the allowance is inadequate. This question was likewise a question for the trial court, except in case of abuse of discretion. See Mower's Appeal, supra; Bacon v. Kent Probate Judge, 100 Mich. 183 (58 N. W. 835); In re Brewster's Estate, supra. We unhesitatingly say that this is not a case of abuse of discretion on the part of the trial court, but, on the contrary, that the allowance was liberal under the circumstances presented by this case.

The judgment is affirmed, with costs.

OSTRANDER, HOOKER, MOORE, and BROOKE, JJ., concurred.

LUND v. SARGENT MANUFACTURING CO.

1. MASTER AND SERVANT-CONTRIBUTORY NEGLIGENCE OF MINOR. An infant of fourteen years is not guilty of negligence per se in attempting to remove a small block from a point near the knives of defendant's planer for the purpose of preventing its interference with the machinery, where he had not been warned that the dust collector exerted sufficient force to draw his hand into the knives.

2. SAME-TRIAL-INSTRUCTIONS-SLIGHT NEGLIGENCE.

No error was committed by the trial court in refusing to charge the jury that slight negligence on plaintiff's part would bar his recovery, and instructing the jury that if he was guilty of negligence within the definition of the court, he could not recover.

3. NEW TRIAL-REVIEW-APPEAL AND ERROR.

The denial of a new trial is not reversible on the ground that the verdict is against the weight of evidence, where experiments with the machinery, not shown in the record, were conducted in the presence of the jury.