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and was liable for the whole sum lent, with interest. — Cook v. Addison, L. R. 7 Eq. 466.
See ACCOUNT; APPORTIONMENT, 1; EQUITY PLEADING AND PRACTICE; ExECUTOR AND ADMINISTRATOR, 3; WARD OF COURT; WIFE'S EQUITY; WILL, 12.
ULTRA VIRES. — See COMPANY, 3.
USAGE. — See Sale, 2, 3.
VENDOR AND PURCHASER OF REAL ESTATE. Defendant, assuming to have authority from the landlord, for whom he had acted in other matters, agreed to renew a lease to the plaintiff, the tenant in possession. Plaintiff afterwards, without communicating with the defendant, agreed to sell to B. her interest in the present and renewed leases. At the end of the old term the landlord put out B., whom the plaintiff had let into possession. Plaintiff then brought a bill for specific performance against the landlord, B. joining with her on being indemnified against the expenses of the suit. The landlord answered and the defendant testified that the latter had acted without authority, and the bill was dismissed. It did not appear that plaintiff had known this fact before. B. then sued plaintiff for her breach of contract, and she paid the amount recovered. Held, that plaintiff could recover the costs of the chancery suit and the value of the lease she had lost, but not the damages and costs recovered from her by B. – Spedding v. Nevell, L. R. 4 C. P. 212.
VENDOR'S LIEN. An agreement for a sale of land to a company in consideration of a rent charge (under the Lands Clauses Act) does not give the vendor a lien for unpaid arrears. - Earl of Jersey v. Briton Ferry Floating Dock Co., L. R. 7 Eq. 409. VOLUNTARY CONVEYANCE. — See BOND; FRAUDULENT CONVEYANCE; SEPARA
WARD OF Court. A ward of court, entitled to a small fund in court to her separate use, married on the day after she came of age. The Master of the Rolls ordered the fund to be settled; but on appeal it was ordered to be transferred to her after a separate examination. — White v. Herrick, L. R. 4 Ch. 345.
WARRANTY. - See CARRIER, 3.
Way. A. purchased of B. the lease of a house, part of an estate agreed to be let to B. upon building leases. There was an arch under the house, described as a * gateway" in a plan drawn on the lease, through which, by the building agreement, was the only access to a mews behind the house. At the time of A.'s purchase there were other means of access to the mews, and a right of way through the arch was not reserved. After the buildings were completed according to the agreement, A. stopped the arch. Held, that a right of way through the arch was reserved by implication ; that A. had constructive if not actual notice of the building plan, and that, having stood by while it was carried out, A. could not now dispute B.'s rights. - Davies v. Sear, L. R. 7 Eq. 427.
WIFE's Equity. In making a settlement, to which the wife of a bankrupt had an equity, out of fund: Held, (1) that the power of investment was to be confined to those securities on which cash under the control of the Court might be invested; (2) that a power of advancement to children was proper; (3) the limitations in default of appointment to be to children, so that sons who died under twenty-one and daughters who died under twenty-one and unmarried, should not take interests transmissible to their representatives ; (4) the ultimate limitation should be to the bankrupt's assignee. — Spirett v. Willows, L. R. 4 Ch. 407 ; s.c. L. R. 1 Ch. 520; 1 Am. Law Rev. 512.
WILL. 1. The burden of proof that the testator knew and approved of the contents of a will is on the party propounding it. — Cleare v. Cleare, L. R. 1 P. & D. 655.
2. A will was to this effect: “ The instructions given this” day to W.'s “ clerk, I desire to be carried out.” The instructions were oral, but the clerk had at the time made short notes of them in the testator's presence. There was no evidence the testator knew any thing of said notes further than that he saw the clerk writing. Probate of the notes, on motion, was refused. — Goods of Pascall, L. R. 1 P. & D. 606.
3. On the back of a will was found a memorandum in the testator's handwriting, signed by him and witnessed. The witnesses could not remember whether the paper was signed when they attested it, and the testator did not say what the paper was. Probate of the paper as a codicil, on motion, was refused. — Goods of Swinford, L. R. 1 P. & D. 630.
4. The testator having informed the witnesses that he wished to make his will, filled up a printed form in their presence and wrote his name in the attestation clause thereto. The witnesses then signed, and the testator again wrote his name after theirs. Probate of the will was granted, omitting the second signature. Goods of Casmore, L. R. 1 P. & D. 653.
5. When a will signed by two witnesses is also signed by a legatee, who is, however, proved not to have signed as a witness, the latter signature will be omitted in the probate. — Goods of Sharman, L. R. 1 P. & D. 661.
6. A probate may be amended after it has issued, so as to show the true date on which the will was executed. — Goods of Allchino, L. R. 1 P. & D. 664.
7. A testator, after life-estates, gave a residue - to my nephews and nieces, the children of ... L. in equal shares . . . as tenants in common; ... and in case of the death of any of my said nephews and nieces leaving issue, ... such issue shall take the share that ... their deceased parent would have taken if living." , Held, that the children of nephews and nieces who died before the date of the will, or after that date, but before the testator, took under the will. — In re Potter's Trust, L. R. 8 Eq. 52.
8. A testator gave his estate to such of his three grandchildren, S., M., and E., as should survive their father and attain twenty-five; but in case two of them should die under twenty-five, and the amount to which the surviving grandchild would then become entitled should exceed £10,000, then the excess to go to the person or persons, exclusive of the surviving grandchild, who, under the Statute of Distributions, would immediately after the decease of the survivor of the other two
grandchildren be entitled to the testator's personal estate, if he had then died intestate. S., and after her E., died under twenty-five. At E.'s death, M. was the testator's sole next of kin. Held, that the persons who at the death of E. would have been the next of kin of the testator if M. also had then been dead, were entitled to file a bill for the administration of his estate, although of a remoter class than M. - White v. Springett, L. R. 4 Ch. 300.
9. A testatrix gave property in trust as to one-fourth for A. for life and then to A.'s children at twenty-three. Any child attaining twenty-three in the lifetime of A. was to acquire a yested interest. In case of the death of A. without leaving children as aforesaid, the trustees were to pay, apply, and dispose of the income of A.'s fourth to and amongst testatrix's “surviving” daughters, such“ benefit of survivorship” to extend to the “ surviving” as well as to the original shares. The principal to go to the children of such daughters. The other three-fourths upon like trusts for the testatrix's other three daughters, B., C., and D., and their children. If all the daughters died and none of their children reached twentythree, the fund was to be held for the next of kin. A. died, leaving children who reached twenty-three. Then C. died childless. Later, D. died, leaving children who reached twenty-three. Held, that “surviving” was to be read “other," and the children of A. took part of C.'s share as well as the children of D. – Badger v. Gregory, L. R. 8 Eq. 78.
10. Trust to pay one-fourth of the income each to testator's four sisters for life, and so soon as any of them should die “ without leaving issue," the share of those ** so dying without issue” to be divisible among the surviving sisters " and the issue of any who may then be dead, in equal ... shares, but such issue to take only their respective parent's share.” And so soon as any of said sisters should die and “ leave issue,” then to call in the shares of them so dying “ leaving issue, and pay the same unto such respective issue, if more than one child, equally." One of said sisters died, having had two children, one of whom survived her mother, and the other died in her mother's lifetime, after the testator, leaving a family. Held, that a moiety of the deceased sister's share went to the family of her deceased child.
"Leaving issue" meant “ having had children.” — Bryden v. Willett, L. R. 7 Eq. 472.
11. A testator gave his residuary estate to trustees in trust to convert into money such parts thereof as should not at his decease consist in money or be invested in any of the public funds or government securities, and to invest the same in such public funds or government securities as to them should seem most advantageous, and to pay the interest, dividends, and annual proceeds of such residue in equal shares to his children for their lives, and after their deaths upon other trusts. Held, that the tenants for life were entitled to enjoy in specie long annuities of which the testator died possessed. — Wilday v. Sandys, L. R. 7 Eq. 455.
12. C. left all his property to G. by will, and appointed him his executor. When about to die, C. sent for G. and told him privately of his will; G. said, “ Is that right ?" C. answered, “ It shall be no other way." C. also told G. that he would find the will in a certain place and a letter with it. G. testified that nothing further passed between him and C. The letter named many persons to whom C. wished various sums to be paid, but after phrases implying some discretion to be allowed to G., there was this sentence: “I do not wish you to act strictly to the foregoing instructions, but leave it entirely to your own good judgment to do as you think I would if living, and as the parties are deserving, and as it is not my wish that you should say any thing about this document there cannot be any fault found with you by any of the parties should you not act in strict accordance with it.” G. paid money to some of the persons mentioned in the letter, but not to all. Held, that the letter did not impose any trust on G., McCormick v. Grogan, L. R. 4 H. L. 82.
13. A testator “devised and bequeathed all his other property whatsoever and wheresoever” to trustees, without words of limitation, after a specific devise of lands with such words. He had no other lands at the date of his will, and the terms of the trust, except the word “income,” were not appropriate to realty. He afterwards became entitled to real estate of great value. Held, that the latter passed to the trustees by the will. — Lloyd v. Lloyd, L. R. 7 Eq. 458.
14. A testator made a will in favor of his sister only, giving her “all my house and land and book debts,” &c., “every thing on the said premises,” “and all other chattels." Held, that the last words carried the general residue. — Goods of Sharman, L. R. 1 P. & D. 661.
See APPORTIONMENT, 2; CHARITY, 1, 2; DEVISE; ELECTION; EXECUTOR AND ADMINISTRATOR, 1, 4; FORFEITURE; LEGACY; PARTITION; PERPETUITY; REVOCATION OF WILL.
WINDING UP. — See COMPANY, 1.
“For the time being entitled.” — See DEED, 1.
“Landed.” — See STATUTE, 3. “Lands or hereditaments in fee simple in possession." — See Trust, 2.
“No hope at present of recovery." — See EVIDENCE, 2.
“Perils of the Sea,” &c.— See INSURANCE, 1.
“Personal Luggage.” — See CARRIER, 2.
“ Profits in Hand.” — See COMPANY, 2.
“Surviving." — See WILL, 9.
Writ of ERROR. — See ERROR.
WRIT OF RESTITUTION. The Court of Queen's Bench had at common law no jurisdiction to issue a writ of restitution except as part of the judgment on an appeal of larceny; and 21 Hen. VIII. c. 11, and 24 & 25 Vict. c. 96, § 114, only confer this jurisdiction on the Court before whom the felon has been convicted. - The Queen v. Lord Mayor of London, L, R. 4 Q. B. 371.
SELECTED DIGEST OF STATE REPORTS.
[For the present number of the Digest, selections have been made from the following volumes of State Reports : 52 Barbour (New York); 5 Coldwell (Tennessee); 4 C. E. Green (19 New Jersey Equity); 42, 43 Illinois ; 20 Louisiana Annual; 55 Maine; 28 Maryland; 98 Massachusetts; 17 Michigan ; 13 Minnesota; 2 Oregon; 57 Pennsylvania State; 3 Vroom (32 New Jersey).]
ABATEMENT. That a prior suit in personam between the same parties and for the same cause of action was pending in another State at the time of bringing the action is not a defence. — Seevers v. Clement, 28 Md. 426.
ACCESSION. 1. A mare with foal was sold, to remain the property of the vendor until paid for. She foaled and the vendor brought replevin for the colt, the price not having been paid. Held, that he could recover. — Allen v. Delano, 55 Me. 113.
2. In Maine the increase of a mare owned by a married woman, and kept on her husband's farm, belongs to her. – Hanson v. Millett, 55 Me. 184.
ACTION. 1. An action ex contractu does not lie against one who fraudulently represents himself as the agent of another and makes a contract in his name. The remedy is case for deceit. — Noyes v. Loring, 55 Me. 408.
2. A widow can maintain an action on the case against one who, after her application for dower but before it is assigned, enters on dowable lands of which her husband died seised and cuts down trees thereon. - Rogers v. Potter, 3 Vroom, 78.
See BREACH OF PROMISE ; CORPORATION, 3, 4; MUNICIPAL CORPORATION ; NEGLIGENCE; NUISANCE, 3, 5, 6; PARENT AND CHILD; SEDUCTION; TENANCY AT WILL; TENANCY IN COMMON; WAGER.
ACT OF GOD. The breach of a contract to navigate on a river is excused if caused by the river's freezing so as to make navigation impossible, this being an act of God. That the contractor at the time of making the contract had reasons which were equally obvious to the other party for expecting such an event does not alter the case. — Worth v. Edmonds, 52 Barb. 40.
ADMINISTRATION. — See EXECUTOR AND ADMINISTRATOR.
ADMISSION. Assumpsit for the value of land conveyed by plaintiff to defendant in consideration of an oral promise by the latter to convey other land worth $2000 to the