Page images
PDF
EPUB

TRADEMARK.

3. G. F. by luis will bequeathed the residuum

of his estate to his only child J. F, and to
See PARTNERSHIP, 1-3.

W. J. “in trust for his son J. F. for bis

support and that of his family." He made
TRESPASS.

no disposition of the remainder after the

trust (state.
1. A complaint alleged that plaintiff was the

It seems, That such a trust

is valid and is one for the benefit of J. F.
owner of certain premises, subject to the

and his family for the life of J. F. Upon
easement of a highway in a portion thereof,

the death of G. F. the remainder, subject
and that defendant wrongfully entered on

to the life trust estate, vested at once in J.
the portion used as a bighway and commit-

F. and could be disposed of by himn.-
ted acts of trespass by running daily there.

Crandall v. Fowler et al., 139.
in steam engines and cars, 10 the injury of
said premises and plaintiff's business in the

4. A special guardian, appointed in proceed-
adjacent building. lleld, That the com-

ings for the sale of infant's real estate, took
plaint stated a cause of action for trespass.

a mortgage on the premises to secure a part
-Hussner v. The Brooklyn City RR. Co.,
217.

of the purchase money ; he afterwards

foreclosed the mortgage, bid off the prop-
2. One who merely owns a water-course, the

erty, and took a deed of the same to liim-
right to the flow of water, cannot maintain self personally. Held, That he took title
trespass for fishing in it. — Peck v. Nichols, as trustee for his ward; that the court had
268.

power to compel him to convey to the ward

and to set aside a mortgage executed by
TRUSTEES.

him on the property, and that he could not

defeat an application for that purpose by
1. Where a trustee kept no account of the suggesting that the title so acquired by him

fund, used the securities in his own busi- would not divest the ward of her contin-
ness and realized profits thereon of which gent interest in the property.-Dodge v.
he rendered no account, lleld, That he was Stevens, 284.
properly charged with legal interest. —
Cook v. Lowry, 508.

5. Defendant's testator deposited certain

money in bank to his credit in trust for
2. In a case of gross neglect or unfaithfulness -

plaintiff, and informed her mother of the
the court may properly disallow commis.

fact. He afterwards withdrew this deposit
sions to a trustec.-Id.

and others of like nature and deposited the
See ExecutORS, &c., 1, 14–16 ; RECEIVERS, 3 ;

whole in another bank to his credit as trus-
SURROGATE, 2, 5, 6.

tee, where it remained until his death.

This was done without plaintiff's know).
TRUSTS.

edge. Held, That the fact that he withdrew

the deposit was not legitimate evidence
1. Although, upon the death of a trustee, the that he did not intend, when the deposit

trust vests in the Supreme Court under was made, to create a beneficial trust for
Chap. 185, Laws of 1882, and does not de. plaintiff; that no power of revocation hav.
scend to his personal representative, never-

ing been reserved, the trust was irrevocable
theless, when the executor of such trustee,

and that the right of action in favor of
with the consent of the cestui que trust, as-

plaintiff did not accrue until testator's death.
sumes control of the trust property and

Mabie v. Bailey, 507.
makes disbursements and renders services
in caring for such property and in defend-

See ACCOUNTING ; Banks, 1; BAR, 7 ; Exec-
ing a suit brought against him concerning it,

UTORS, &c., 6.
he is entitled to be reimbursed the amount
so spent and to be compensated for the

UNDERTAKING.
services so performed, and this court has
power, upon a petition being presented by 1. An undertaking given to stay execution on
him praying that lie be allowed to account, appeal from a judgment, by which the sure-
&c., whereupon it assumes the trust and ties undertake "that the appellant will pay
appoints a trustee, to order a reference to all costs and damages which may be
take proof of the value of such services awarded against him on said appeal, not
and the amount of the disbursements. exceeding $500, and that if the judgment
In re petition of lernandez, 78.

appealed from, or any part thereof, is

attirmed, or the appeal is dismissed, the ap-
2. Where one agreed to bid in premises at
foreclosure sale and hold them, giving an-

pellant will pay the sum recovered or

directed to be paid by the affirmance, or the
other the option of purchasing them within

the part thereof as to which it is affirmed,'
a certain time, and the second party, through
mistake, failed to exercise her option

does not comply with $ 1327 of the Code of

Civ. Pro. and will not be approved. - Hol-
within the lime, lield, That the purchaser lister v. McNeil, 513.
held as trustee, and the contract could be
enforced against him within a reasonable See APPEAL, 5; ARREST, 2; INJUNCTION, 8;
time. — Welch y. Preston et al., 83.

SURETYSAIP, 1-7.

I

1

USAGE.
See CONTRACT, 17; EVIDENCE, 10.

as was expec:ed 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.-Id.
See GOARANTY, 3.

VARIANCE.

See CONTRACT, 16 ; ESTOPPEL, 6.

VENUE.

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. $1,000 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.

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
ihe affidavit resworn. Unless such objec-
tion is taken in the court below it wiil be
assumed that it was waived either expressly
or cum silentio.-Id.

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 fixel salary to
attend to his office business, keep books and
solicit business. Weld. 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

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.

VILLAGES.

tain specified real property, yet if it plainly

appears from the will ibat it was the in-
1. Whenever the territory included within tention of the testator that bis executors

the bounds of a proposed village exceeds should make a complete division and dis-
one square mile, such additional territory tribution of his entire property upon the
must have at least 300 persons within its

happening of a certain event, and such
bounds.-In re village of Elbu, 305.

division cannot be made without a sale of
2. An election to decide upon the incorpor-

his real property, a power of sale of such

real property will be impliedly given to
ation of a village exceeding one square the executors and they can convey a good
mile of territory, where the excess does

title to such properly.-Id.
not contain the requisite population, is
illegal, and the objections thereto may be 4. A will may be admitted to probate against
taken summarily before the county judge.- the testimony of the subscribing witnesses
Id.

upon other evidence satisfactory to the
WAIVER.

surrogate.-In re will of Cottrell, 167.
1. A party may waive a statutory and even a

5. A legacy limited to property in a particular
constitutional provision made for his bepe. place is to be construed as specific and
fit, and having once done so cannot after- not general.- Getman v. McMahon, 185.
wards ask for its protection.—In re appli- 6. Testatrix by her will left all her property
cation of Cooper, 28.

to her daughter, and by a subsequent
See ATTORNEYS, 8 ; CHATTEL MORTGAGE, 1,

clause provided that in case the daughter
3 ; CONTRACT, 13; EMINENT DOMAIN, 10;

should die without issue the property
EXECUTION, 1; FIRE INSURANCE, 8; FRAUD,

should be enjoyed by testatrix's husband
5; LEASE, 8; REFERENCE, 5.

and sister, and after their death to be di.

vided among her brothers ; the devise over
WARRANTY.

to be contingent upon the daughter's dying

without issue. Held, That the daughter
See EVIDENCE, 7, 8; FIRE INSURANCE, 5. took only a lise estate, or conditional fee,

and not an absolute fec.In re application
WHARFAGE.

of the N. Y., L. & W. RR. Co. to acquire lands

of Van Zandt, 211.
See Deeds, 1.

7. Where one of the witnesses to a will tes.
WIDOW.

tifies to facts showing a strict compliance

with the statute, the want of memory of
See DowER; WILLS, 20.

the other witness will not overcome the
WILLS,

positive testimony.-In re probate will of

Higgins, 293.
1. Testator by his will bequeathed a

8. The evidence of persons who were acci-
tain sum to his executors in trust to invest
it and pay the income to the New York

dentally present at the execution of the
Home for Blind so long as it should main-

will, but who had nothing to do with it,
tain and care for one G., and in case it

is not entitled to the same weight as that
should care for him during the balance of

given by the subscribing witnesses.-Id.
his life, then in trust to pay the principal to 9 Where a decree admitting a will to probate
said institution, but in case it ceased to

has been rendered by the Surrogate on
exist or maintain an institution for the care

conflicting evidence and affirmed by the
of the blind, then in trust to pay the income General Term it is not reviewable in the
to any other society that should care for

Court of Appeals.-Id.
said G. and which he might select, and 10
pay the principal to such society as should 10. When there are but two witnesses to a
be supporting him at his death. lleld, will, both of whom reside in the State, and
That G. was not entitled to the income of are of sound mind and not disabled by
the fund, but to bis support at some in- age, sickness or infirmity, and the will
corporated institution. - Livingston et al. v. cannot be proven without such witnesses,
Gordon et al., 53.

any devise, legacy, interest or appointment

made to such witness is void under the
2. A clause in a will devising to executors

statute.-In re will of Orson, 306.
all the rest, residue and remainder of the
testator's estate, both real and personal, 11. A devisee who claims a mere legal estate
conveys to such executors a parcel of real in real property of a testator, where there is
property acquired by the testator subse- no trust, cannot maintain an action for the
quent to the execution of the will and not construction of the devise, but must assert
otherwise disposed of. — Messenger v. his title in an action at law. Weed et al. v.
Casey, 71.

Root, 316.
3. Although a testator gives an express 12. Whether a clause restraining alienation

power of sale to his exccutors of only cer during the lifetime of the devisee, to whom

cer-

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 votary. 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

named; the heirs of any wlio 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.
Daris 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

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.,
wlio 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 fundon 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 saine 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.

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 hereinbefore
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-
erly of the testator.-Rogers v. Case el al.,
470.

24. Testator gave and devised a portion of his

estate to his executois 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. lleld, That the direction
to accumulate was void and that plaintiff
was entitled to the whole income. --Barbour
v. De Forest et al., 478.

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.

-11.
20. The will of G. directed that on the death

of her husband her estate should be divided
into equil shares, one of them to go to D.
and his heirs, and the others to persons

25. If from the cross-cxamination 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. Alien,
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 withi.-Crossman et
al. v. Crossman et al., 494.

28. The petition for probate of such will

need not state that it was executed in dupli-

cale.--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-
cd and whether cach 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 crcated 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, S2, 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 indetiniteness 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 probate.-In re pro-
bate will of Gouraud, 516.

5

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 1818, 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. Hoilis et al., 544.
37. To ascertain whether a testator has be.

qucathed 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. Ileld, That the words "in
case of the decease” bad 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,

« PreviousContinue »