TRADEMARK.

See PARTNERSHIP, 1-3.

TRESPASS.

1. A complaint alleged that plaintiff was the
owner of certain premises, subject to the
easement of a highway in a portion thereof,
and that defendant wrongfully entered on
the portion used as a highway and commit-
ted acts of trespass by running daily there.
in steam engines and cars, to the injury of
said premises and plaintiff's business in the
adjacent building. Held, That the com-
plaint stated a cause of action for trespass.
-Hussner v. The Brooklyn City RR. Co.,
217.

2. One who merely owns a water-course, the
right to the flow of water, cannot maintain
Nichols,
trespass for fishing in it.-Peck v.
268.

1. Although, upon the death of a trustee, the
trust vests in the Supreme Court under
Chap. 185, Laws of 1882, and does not de-
scend to his personal representative, never-
theless, when the executor of such trustee,
with the consent of the cestui que trust, as-
sumes control of the trust property and
makes disbursements and renders services
in caring for such property and in defend-
ing a suit brought against him concerning it,
he is entitled to be reimbursed the amount
so spent and to be compensated for the
services so performed, and this court has
power, upon a petition being presented by
him praying that he be allowed to account,
&c., whereupon it assumes the trust and
appoints a trustee, to order a reference to
take proof of the value of such services
and the amount of the disbursements.-
In re petition of Hernandez, 78.

2. Where one agreed to bid in premises at
foreclosure sale and hold them, giving an-
other the option of purchasing them within
a certain time, and the second party, through
mistake, failed to exercise her option
within the time, Held, That the purchaser
held as trustee, and the contract could be
enforced against him within a reasonable
time. Welch v. Preston et al., 83.

3. G. F. by his will bequeathed the residuum
of his estate to his only child J. F. and to
W. J. in trust for his son J. F. for his
support and that of his family.' He made

no disposition of the remainder after the
trust estate. It seems, That such a trust
is valid and is one for the benefit of J. F.
and his family for the life of J. F. Upon
the death of G. F. the remainder, subject
to the life trust estate, vested at once in J.
F. and could be disposed of by him.-
Crandall v. Fowler et al., 139.

4. A special guardian, appointed in proceed-
ings for the sale of infant's real estate, took
a mortgage on the premises to secure a part
of the purchase money; he afterwards
foreclosed the mortgage, bid off the prop-
erty, and took a deed of the same to him-
self personally. Held, That he took title
as trustee for his ward; that the court had
power to compel him to convey to the ward
and to set aside a mortgage executed by
him on the property, and that he could not
defeat an application for that purpose by
suggesting that the title so acquired by him
would not divest the ward of her contin-
gent interest in the property.-Dodge v.
Stevens, 284.

5. Defendant's testator deposited certain
money in bank to his credit in trust for
plaintiff, and informed her mother of the
fact. He afterwards withdrew this deposit
and others of like nature and deposited the
whole in another bank to his credit as trus-
tee. where it remained until his death.
This was done without plaintiff's knowl.
edge. Held, That the fact that he withdrew
the deposit was not legitimate evidence
that he did not intend, when the deposit
was made, to create a beneficial trust for
plaintiff; that no power of revocation hav-
ing been reserved, the trust was irrevocable
and that the right of action in favor of
plaintiff did not accrue until testator's death.
Mabie v. Bailey, 507.

See ACCOUNTING; BANKS, 1; BAR, 7; EXEC-
UTORS, &C., 6.

UNDERTAKING.

1. An undertaking given to stay execution on
appeal from a judgment, by which the sure-
ties undertake "that the appellant will pay
all costs and damages which may be
awarded against him on said appeal, not
exceeding $500, and that if the judgment
appealed from, or any part thereof, is
affirmed, or the appeal is dismissed, the ap-
pellant will pay the sum recovered or
directed to be paid by the affirmance, or the
the part thereof as to which it is affirmed,"
does not comply with § 1327 of the Code of
Civ. Pro. and will not be approved. - Hol-
lister v. McNeil, 513.

See APPEAL, 5; ARREST, 2; INJUNCTION, 8;
SURETYSHIP, 1–7.

USAGE.

See CONTRACT. 17; EVIDENCE, 10.

USURY.

1. The taking of a premium upon a loan
made by a building association organized
under the act of 1851, as amended in 1875,
is sanctioned by that act and does not ren-
der the loan usurious.-The Concordia Sav-
ings Aid Assn. v. Reed, 169.

2. C. stated to plaintiff that he owed H. &
M. $7,000 and that he would give mortga-
ges to them for that amount which plain-
tiff might cash for $6,000 and so receive
$1,000. This was done. In an action on
the mortgages the complaint alleged that
they were delivered to the mortgagees,
which the answer admitted. Held, That
that fact was to be taken as true; that from
the moment of such delivery the mortgages
had a valid inception and might be sold by
the mortgagee at any price without the im-
putation of usury; that the fact that they
were executed after an understanding with
plaintiff that he would purchase them for
less than their face did not make the pur-
chase usurious, or change the contract into
a loan; but that, the mortgages being for a
greater amount than the debts actually due
H. & M., plaintiff could not enforce them
for more than the true amount.-Dunham
v. Cudlipp et al., 176.

3. Parties have a right to deal with each
other with the usury laws before their eyes
and to so shape the transaction as to avoid
the condemnation of those laws.-The Un-
ion Dime Savgs. Inst. v. Clark et al, 193.

4. One who has money to loan or invest has
a right to require, in order that he may ob-
tain more than 6 per cent., that securities
having a valid inception and free from the
taint of usury be presented before he will
advance money.-Id.

5. Plaintiff on being applied to for a loan re-
quired that a purchase money mortgage be
made so that it could purchase at a dis-
count and secure more than 7 per cent. The
mortgage purported to be for purchase
money and it was so represented by the
mortgagor and mortgagee, with the knowl-
edge of S., a subsequent grantee, and they
also represented it to be valid and that no
defence existed. Held, That plaintiff had
a right to purchase at a discount and that
the mortgagor and mortgagee and those
claiming under them were estopped from
alleging the defence of usury.—ld.

6. Plaintiff agreed to loan his money to one
P., who employed him at a fixed salary to
attend to his office business, keep books and
solicit business. Held, That the agreement
was not per se usurious, but depended on
the intention of the parties, and that the
fact that plaintiff did not do as much work

as was expected threw very little light on
such intention.-Tillinghast v. Pratt et al.,
570.

7. There is no rule of law which forbids an
employer to borrow from his employee. or
prevents the employee from lending to his
master.-ld.

See GUARANTY, 3.

VARIANCE.

See CONTRACT, 16; ESTOPPEL, 6.

VENUE.

I. Upon a motion to change the place of trial
the defendant's affidavit must satisfy the
strict requirements of practice in such cases.
He must state that he has fully and fairly
stated, &c., the facts he expects to prove by
each and every witness; that each and every
one is material, &c., and that without the
testimony of each and every one he cannot
proceed, &c.-Carpenter v. The Continental
Ins. Co., 89.

2. The application to change the place of trial
under subd. 3 of § 987, for convenience of
witnesses, is one which rests in the sound
discretion of the Court, and the Court will
consider whether the ends of justice will be
promoted by the change, and on appeal the
Court will not interfere with the discretion
of the Court below, unless abused.-Crom-
well v. Romer et al., 440.

3. Sections 982, 983 and 984, Code Civ. Pro.,
must be read in connection with section
987 of the Code, which confers full power
upon the court to change the place of trial
for any of the reasons therein specified,
and the phrase "must be tried" used in
sections 982 to 984 inclusive is limited by
the provisions of section 987.-Gorman v.
The South Boston Iron Co., 529.

4. An irregularity in an affidavit to change
the place of trial on the ground of the con-
venience of witnesses, in that it did not
state that the affiant had stated to counsel
what he expected to prove by the several
witnesses, must be taken advantage of in
the court below, inasmuch as the regularity
is curable, and the court below might have
permitted the correction to be made and
the affidavit resworn. Unless such objec-
tion is taken in the court below it will be
assumed that it was waived either expressly
or cum silentio.-Id.

See SHERIFFs, 1, 2.

VERIFICATION.

1. A verification to a petition which states
that petitioner knows the contents thereof
and that the same are true is sufficient.-In
re application for accounting of Macaulay, 445.

See PLEADING, 16.

WHARFAGE.

See DEEDS, 1.
WIDOW.

See DOWER; WILLS, 20.
WILLS.

1. Testator by his will bequeathed a cer-
tain sum to his executors in trust to invest
it and pay the income to the New York
Home for Blind so long as it should main-
tain and care for one G., and in case it
should care for him during the balance of
his life, then in trust to pay the principal to
said institution, but in case it ceased to
exist or maintain an institution for the care
of the blind, then in trust to pay the income
to any other society that should care for
said G. and which he might select, and to
pay the principal to such society as should
be supporting him at his death. Held,
That G. was not entitled to the income of
the fund, but to his support at some in-
corporated institution.-Livingston et al. v.
Gordon et al., 53.

2. A clause in a will devising to executors
all the rest, residue and remainder of the
testator's estate, both real and personal,
conveys to such executors a parcel of real
property acquired by the testator subse-
quent to the execution of the will and not
otherwise disposed of. Messenger v.
Casey, 71.

3. Although a testator gives an express
power of sale to his executors of only cer

tain specified real property, yet if it plainly
appears from the will that it was the in-
tention of the testator that his executors
should make a complete division and dis-
tribution of his entire property upon the
happening of a certain event, and such
division cannot be made without a sale of
his real property, a power of sale of such
real property will be impliedly given to
the executors and they can convey a good
title to such property.-Id.

4. A will may be admitted to probate against
the testimony of the subscribing witnesses
upon other evidence satisfactory to the
surrogate.-In re will of Cottrell, 167.

5. A legacy limited to property in a particular
place is to be construed as specific and
not general.Getman v. McMahon, 185.

6. Testatrix by her will left all her property
to her daughter, and by a subsequent
clause provided that in case the daughter
should die without issue the property
should be enjoyed by testatrix's husband
and sister, and after their death to be di-
vided among her brothers; the devise over
to be contingent upon the daughter's dying
without issue. Held, That the daughter
took only a life estate, or conditional fee,
and not an absolute fee.-In re application
of the N. Y., L. & W. RR. Co. to acquire lands
of Van Zandt, 211.

7. Where one of the witnesses to a will tes-
tifies to facts showing a strict compliance
with the statute, the want of memory of
the other witness will not overcome the
positive testimony.-In re probate will of
Higgins, 293.

8. The evidence of persons who were acci-
dentally present at the execution of the
will, but who had nothing to do with it,
is not entitled to the same weight as that
given by the subscribing witnesses.-Id.

9 Where a decree admitting a will to probate
has been rendered by the Surrogate on
conflicting evidence and affirmed by the
General Term it is not reviewable in the
Court of Appeals.-Id.

10. When there are but two witnesses to a
will, both of whom reside in the State, and
are of sound mind and not disabled by
age, sickness or infirmity, and the will
cannot be proven without such witnesses,
any devise, legacy, interest or appointment
made to such witness is void under the
statute. In re will of Orson, 306.

11. A devisee who claims a mere legal estate
in real property of a testator, where there is
no trust, cannot maintain an action for the
construction of the devise, but must assert
his title in an action at law. Weed et al. v.
Root, 316.

12. Whether a clause restraining alienation
during the lifetime of the devisee, to whom

a fee was devised determinable on her death
without issue, is repugnant to the estate de-
vised and so void is purely a question of
law and involves no elements of equitable
jurisdiction. Id.

13. The will in question was executed and is
on file in Cadiz, Spain, and cannot be taken
therefrom. The testimonium clause is
followed by the language of the notary as
to the mode of execution, at the end of
which are the signatures of the testator,
witnesses and notary. Held, That this was
a subscription at the end of the will and
that this was a case within § 1861 of the
Code.-Younger v. Duffie, 366.

14. Where an action was brought by the heirs
of a devisce involving the construction of a
will and it appeared that the testatrix died
in and the property was located in another
State and that the defendant was, pursuant
to an act of its legislature, under bonds to
a court of that State to obey its orders and
to make return of his proceedings in regard
to the property in question to said court,
Held, That the courts of this state would
not entertain jurisdiction of the action.
-Alger v. Alger, 370.

--

15. It seems, that, in the absence of proof, it
will not be presumed that the statute law of
another State is the same as our own.-Id.

16. Contingent interests are assignable, devis-
able and descendible.-Kenyon v. See et
al., 422.

17. One M., by his will, gave a portion of his
estate to A. in trust to pay the income to B.
in case he should renounce the Roman
Catholic priesthood, and in case he should
do so and marry, gave to B, the principal
also. In case B. should die before marriage
the share was given to A. B. refused to
renounce and conveyed his interest to A.,
who died before B. Held, That B.'s rights
under the will were only conditional; that
the alternative gift to A. was also con-
ditional, and this contingent right passed to
A.'s representives, who will be entitled to
the fund on B.'s death before marriage.
-Id.

18. In this State the will of a non-resident,
without regard to the place of its execution
or the place of testator's death, may be ad-
mitted to probate if the same be executed in
pursuance of the laws of this State, or as
prescribed by the laws of the testator's resi-
dence. In re probate will of Seabra, 428.

19. A commission should be granted to ex-
amine non-resident witnesses whose evi-
dence is shown to be material and important,
when the application is made in good faith.
-Id.

20. The will of G. directed that on the death
of her husband her estate should be divided
into equal shares, one of them to go to D.
and his heirs, and the others to persons

named; the heirs of any who died before
the husband to take the share which the one
so dying would have taken. D. died be-
fore the husband, leaving no blood rela-
tions except descendants of a deceased
sister, and by his will left to his wife all
his interest under the will of G. Held,
That it was the intention of G. that the
heirs of D. should take by substitution in
case he died before her husband, and that D.
could convey nothing to his wife by his
will, and that the word heirs in the will did
not include the widow of D.-Tilman v.
Davis et al, 450.

21. The word "heirs" when applied to per-
sonal property has no broader signification
than next of kin," and in the absence of
anything showing a different intention must
be held to mean relatives in blood.--Id
22. Testatrix bequeathed her property to her
two daughters in equal parts, each to come
in full possession when she was twenty-one,
and her husband to have the use thereof
until that time; in case of the death of
either, the other to receive her share, and
in case of the death of both before reaching
twenty-one the shares to be divided between
testatrix's brothers and sisters. The older
one died after she became twenty-one and
thereafter the other died under that age.
Held, That the share of the elder passed to
her heirs at law and that of the younger to
the brothers and sisters of testatrix.- Watts
et al. v. Ronald, 451.

23. Testator bequeathed legacies "out of the
remainder of my estate not herein before
disposed of and to which I am or shall be
entitled by the will of my uncle, R., and
the residue to my nephews and nieces.” He
left property derived from the estate of his
father after the making of the will. Held,
That this clause disposed of all the prop-
erty of the testator.-Rogers v. Case et al.,
470.

24. Testator gave and devised a portion of his
estate to his executors in trust to apply the
income thereof to the use of plaintiff for
life and after her death to transfer the prin-
cipal to her children. By a codicil he pro-
vided that so much of said income as in the
judgment of the executors was not needed
for plaintiff's support should be invested
during her minority and dealt with as part
of the principal. Ield, That the direction
to accumulate was void and that plaintiff
was entitled to the whole income.--Barbour
v. De Forest et al., 478.

25. If from the cross-examination of the sub-
scribing witnesses to a will it can be said that
they were in doubt or had forgotten as to
important facts necessary to the due execu-
tion of the will, a full and complete attes
tation clause and its recitals will supply
such deficiencies.-Milligan et al. v. Allen,
485.

26. That a conversation is coherent and intel-
ligent is a fact, not an opinion.-Id.

27. Where a will is executed in duplicate the
probate of one of the duplicates is sufficient.
Where the other is afterwards produced,
authenticated and filed, everything that the
law requires is complied with.-Crossman et
al. v. Crossman et al., 494.

28. The petition for probate of such a will
need not state that it was executed in dupli-
cate.--Id.

29. When it appears that there are duplicates
of a will presented for probate the surro-
gate may require both to be presented, not
for the purpose of probating both, but to
ascertain whether the will has been revok-
ed and whether each completely contains
the will of testator.-Id.

30. Where an interlineation or erasure is fair
upon its face and there is no circumstance
whatever to cast suspicion on it, it is not
proper for the court to hold that it was
made after execution; but where there are
suspicious or doubtful circumstances, they
must be taken into consideration in deter-
mining whether the alteration was made
before or after execution.-Id.

31. A trust was created by will of a portion
of testator's estate during his daughter's
life, with direction to pay the income of a
part thereof to the daughter and invest the
balance, the whole to be paid to her issue
on her death. Held, That the direction as
to accumulations was void; that $ 40, 1 R.
S., 726, is a rule of limitation within 1 R.
S., 773, § 2. and that the accumulations be-
long to the issue of said daughter..-Cook v.
Lowry, 508

32. Where a gift to a charitable use is so
indefinite as to be incapable of being exe-
cuted by a judicial decree it must fail.-
Prichard et al. v. Thompson, 511.

33. Testator bequeathed certain personal
property to his executors in trust to distrib-
ute and apply the same to such charitable
and educational uses as should be specified
in a codicil to be thereafter made, and di-
rected that if no codicil should be executed
then on trust to distribute among such in-
stitutions incorporated under the laws of
New York or Maryland, having authority
to receive and hold funds for such uses, as
the executors should elect. No codicil was
made. Held, That the provision made was
void by reason of indefiniteness and uncer-
tainty in failing to designate any institu
tion or class of institutions which were to
be the recipients of the bequest.—Id.

34. The Surrogate cannot refuse to hear alle-
gations filed for a revocation of probate on
the ground that they are substantially those
filed against the original probatc.—In re pro-
bate will of Gouraud, 516.

35. The mere filing of allegations against the
probate of a will for the purpose of procur
ing a revocation thereof during the year is
sufficient to institute a contest; it is not
necessary that the citations should be issued
and served within the year.-Id.

36. The prohibition in the last clause of § 6,
Chap. 319, Laws of 1848, has exclusive ref-
erence to devises and bequests made by
corporations formed under said act, and can-
not be enforced against foreign corpora-
tions which are authorized by their char-
ters to take by devise or bequest free from
a similar limitation in the state of their cre-
ation, but the provision of Chap. 360, Laws
of 1860, limiting the amount which may be
bequeathed, applies to such corporations.—
Hollis v. Hollis et al., 544.

37. To ascertain whether a testator has be
queathed to such corporation more than
one-half his estate after paying debts, his
whole estate must be treated as if converted
into money and its value ascertained by
help of annuity tables and such other means
as are available, and if the money value of
the portion given is not more than one-half
the statute is not violated.-Id.

38. Violent reproaches and angry threats
made by testator's wife when he was on his
death bed exceed the limits of due influ-
ence which she might rightfully have used
to induce her husband to dispose of his
property as she wished.-In re probate will
of Clark, 552.

39. When acts of undue influence are proved,
declarations of the testator are proper evi-
dence to show the operation such acts had
upon his mind. —Id.

40. Where the evidence on probate of a will
was either circumstantial or expert opinions
and uncertain and it appeared that the pro-
ponent would have been entitled to all the
property if testator had died intestate, the
appellate court cannot, in the absence of
proof of any motive on proponent's part,
reverse the findings of the court below in
favor of probatc.-Peck v. Callaghan, 565.
41. Specimens of the handwriting of a testa-
tor are admissible to enable experts to
give their opinions as to the genuineness
of the signature to the will by compari-
son.-Id.

42. One T. devised certain property to his
daughter. By a codicil he provided that
"in case of the decease of my daughter,"
the property devised to her should go to
her children. Held, That the words "in
case of the decease" had reference to her
death prior to that of testator, and that,
outliving him, she took an estate in fee.—
Kerr v. Bryan et al., 569.

43. When the language used by a testator has
a plain meaning, and is neither uncertain,