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.
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.
See CONTRACT. 17; EVIDENCE, 10.
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 CONTRACT, 16; ESTOPPEL, 6.
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.
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.
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,
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