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

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

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.

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,