VENDOR AND PURCHASER- Continued.

PAGE.

surety upon a guardianship bond, the defendant's right to reimbursement
for improvements made by her upon the premises is limited to the improve-
ments made by her while she was in actual possession and control of the
premises, and not during all the time that such defendant may have held title
thereto. SPANGENBERG v. SCHNEIDER .
200

-

Presumption that the title to the fee of a country road is in the abut-
ting owners Bloomingdale road was not in existence during the Dutch
occupancy of New York city the title to the fee of that road was in the
abutting owners - the fee was not taken by the city under chapter 61 of the
Laws of 1787 nor under chapter 203 of the Laws of 1847 nor under chapter
890 of the Laws of 1869 - title to the fee could not be acquired by the city
without an award of damages the payment for land outside a road does
not estop the owner from claiming the fee of the road-title was not acquired
by the city by adverse possession · what description conveys the fee of the
road what deed, although it refers to the lot number on a map describing
the road, does not on the discontinuance of a public or private road the
title reverts to the abutting owners a conveyance of land bounding it on a
road creates an easement in the road. MOTT v. ENO....

-

-

See MUNICIPAL CORPORATION.

Attorney and client - fraudulent act of the attorney in securing a
laches of the client in failing to repudiate the

mortgage from his client -

transaction until it has passed to a bona fide purchaser.

DALY V. REINELDT

See MORTGAGE.

580

147

-

- title thereto - general

Hempstead bay and the Post Lead tract
and particular description in a deed. SANDIFORD v. TOWN OF HEMPSTEAD.. 163
See HEMPSTEAD BAY.

Construction of a patent of September 20, 1697, from Governor
Fletcher to William Nicoll-Ronkonkoma lake, Long Island, is covered
thereby a patent so far as it overlaps a previous one is void.

TOWNSEND v. TRUSTEES OF BROOKHAVEN..

See DEED.

Destruction of a deed already delivered to a husband, and the substi-
tution therefor of a deed to his wife- the title passes to the wife - effect of
the wife's having improved the property. BALL V. BALL...

See DEED.

What encroachment of a building will justify a contract vendee of
the lot upon which it encroaches in refusing to complete his purchase.

BERGMAN v. KLEIN..

See EJECTMENT.

Restrictive covenant

-

not held to apply only to "tenement" houses,
where "apartment" and "community" houses are mentioned.

MCCLURE . LEAYCRAFT.

316

347

15

518

See CONTRACT.

See DEED.

VENUE- Change of venue · the affidavits as to residence must speak as of the
date of the commencement of the action.] Upon a motion by the defendant in
an action to change the venue thereof from the county of Kings, in which it
had been originally laid, to the county of New York, the defendant submitted
an affidavit alleging that the plaintiff was a resident of Chicago at the time
of the occurrence out of which the cause of action arose, and that he, the
defendant, was a resident of the city of New York. The plaintiff submitted
an opposing affidavit in which she stated that she resided in the borough
of Brooklyn.

Held, that both affidavits were defective in that the averments as to the
residences of the respective parties were not addressed to the time when the
action was commenced;

That, there being no evidence before the court as to the residence of either
of the parties at the time of the commencement of the action, the plaintiff
was entitled, under section 984 of the Code of Civil Procedure, to designate
any county for the purpose of trial. BURKE v. FRENKEL..

19

WAIVER

-

PAGE.

To make the acceptance of a benefit under an order operate as
a waiver of the right of appeal, there must be an inconsistency in retaining such
benefit and at the same time appealing from the order.

See ZIADI v. INTERURBAN STREET RAILWAY CO......

When the cause of action is ex delicto, the plaintiff may waive the tort

and sue in assumpsit.

See BERMEL v. HARNISCHFEGER.

Of the right to urge an exception on appeal.

See APPEAL.

·expense of construction, how shared by

towns abutting on the stream—what description of a boundary line does not
convey to the center of a stream meaning of words "streams or other waters

upon their boundaries.”

-

See TOWN OF E. FISHKILL v. TOWN OF WAPPINGER.

WIDOW-Right of, to dower.

-

See DOWER.

See HUSBAND AND WIFE.

-

WILL - A trust estate if suspended on years and not on lives is void — a
power of sale given for the purposes of administration, falls with the trust.]
1. George Hagemeyer died June 14, 1892, leaving surviving him Mary Hage-
meyer, his widow, and the following children: George Hagemeyer, Caspar
Hagemeyer, Lizzie Walter and Martha J. Hagemeyer, who were of full age
at the time of the testator's death, and Mary Hagemeyer, Emma Hagemeyer
and Eva Hagemeyer, who were infants at the time of the testator's death.
The youngest child, Eva, became twenty-one years of age November 20, 1900.
The said George Hagemeyer, by his will, gave his residuary estate, both real
and personal, to his executors in trust, and directed them, under certain con-
ditions, to allow the testator's share of the capital employed in a certain
business to remain therein until the testator's youngest daughter, Eva, should
attain the age of twenty-one years; to invest all other personal estate in cer-
tain specified securities and to rent the remaining real estate. The testator
then directed the executors, out of the income of the trust estate, to pay his
widow the sum of $7,000 per annum during her natural life, and also to pay
out of such income certain sums for the support of his four unmarried
daughters until the youngest daughter should become of age. He also made
provision for certain advancements in the event of the marriage of either of
such four daughters before the youngest daughter became twenty-one years
of age.

The will then provided: "Upon my said youngest daughter Eva attaining
the age of twenty-one years the interest of my estate in the business herein-
before directed to be carried on by my sons shall be withdrawn; and my
executors, after retaining either out of my real or personal estate or both, a
portion amply sufficient to produce an annual income of seven thousand
dollars to be paid to my wife during her natural life, as hereinbefore directed,
shall make a division of all the remainder of my estate then remaining in the
hands of my executors into seven equal shares, taking into account the
advancements which I have already made to three of my children.
And my executors shall thereupon pay over one of said seven equal shares
(less the amount of his or her advancement as aforesaid) to each of my five
other children, viz., George, Caspar, Lizzie, Martha and Mary.

*

"But the share of each of my two younger children, Emma and Eva, (to
wit, one of said equal seventh parts, less the advancement of Eighteen thou-

137

402

WILL- Continued.

PAGE.

sand dollars, if the same shall have been made for the benefit of such daughter,
upon her marriage as hereinbefore directed), shall be retained by my said
executors and kept securely invested until my said two younger daughters
respectively attain the age of twenty-eight years. My said executors shall
in the meantime, out of the income, pay to each of such daughters the sum
of Nine hundred dollars per annum or, in case my said wife shall not be
living the sum of Fifteen hundred dollars per annum.

And upon each of such two daughters attaining the age of twenty-eight
years my executors shall pay over to each the principal of her said share,
together with all accumulations of interest thereon in the hands of said

executors.

"And upon the decease of my said wife the portion of my estate set apart
and held as aforesaid by my executors to produce the annuity payable to
my said wife, during her natural life as aforesaid, with all accumulations
of income (if any) derived therefrom and the entire estate then remaining in
the hands of my said executors shall be paid over by my said executors to
my said two sons and five daughters, equally, share and share alike; except-
ing that if my said wife shall die before my youngest child attains the age
of twenty-eight years the provisions hereinbefore contained as to the time
of the payment of the respective shares of my children shall control the
time of the payment of their shares upon this final distribution.

The time when my youngest daughter Eva attains the age of twenty-
one years or becomes twenty-one years of age shall be construed in this
will (in case of her decease during her minority) to mean the time when, if
living, she would have attained that age."

Held, that the will contemplated two divisions of the estate; one when
the youngest child, Eva, became twenty-one years of age, in which event
the distribution was to be absolute of all the property save such as was
necessary to produce the annuity to be paid to the widow and the shares of
the two youngest children; and the other when the widow died, in which
case the distribution would embrace the trust property which had been held
by the executors for the purpose of producing the annual income payable to
the widow;

That both distributions were made to take place upon the youngest
child's attaining her majority, or, in case of her prior death, upon the arrival
of the time when, if living, she would have become of age, but in the event
that, at the time of distribution, the two youngest daughters should not have
attained the age of twenty-eight their shares were to be held in trust until
they should respectively reach that age.

That the trust provisions of the will, consequently, contravened the statutes
against perpetuities, in that the vesting of the shares of both the elder chil-
dren and of the two younger children was dependent upon a term of years
and not upon the lives of any individuals;

That, as the trust provisions were void, the executors named in the will
could not, under a power of sale given them for the purposes of distribution,
convey a good title to real property included in the trust estate.

2.

HAGEMEYER v. SAULPAUGH

When a child takes property on coming of age, or, if it dies, its chil-
dren take-void provision for accumulation of income.] The will of Mary
Emily Hull provided as follows: "Seventh. All the rest, residue and remain-
der of my said property, both real and personal and wherever situate, I
give, devise and bequeath to James Hull in trust, nevertheless, to invest and
keep the same invested, collect all the income thereof, and from and out of
the income of all my said property my said executor and trustee is hereby
directed to pay to my daughter, Helen Maxwell Bushby, the annual sum of
twelve hundred dollars, payable in monthly installments; said executor and
trustee is directed to take proper care of all my real estate, keep the same in
good repair, a nd insured, pay the taxes and assessments thereon, and do
any and all acts necessary and proper in the care thereof. Should the income
of all my property exceed the amount necessary to pay all annuities and
charges thereon, I direct that the surplus shall be accumulated in the hands
of my said executor and trustee, and by him, at his discretion, paid to my
daughter, Helen Maxwell Bushby, the same as the above provision of twelve
hundred dollars."

535

PAGE.

Held, that as the provision for the payment of the income of the residuary
estate to Helen Maxwell Bushby was not limited to the latter's life, or in
any other way, and that as the will failed to provide for any remainder in
the residuary estate, and as there was a strong inference that the entire
residuary estate was intended for the benefit of the said Helen Maxwell
Bushby, the latter took the residuary estate absolutely and not simply the
income thereof for life with remainder at her death to those who would
take in the event of the testatrix having died intestate;

That the provision for the accumulation of the income was void.

3.

MATTER OF HULL.

When a limitation as to a death while married applies only if there be
no children.] The will of Tobias Frere gave a portion of his residuary estate to
his executors in trust, "to pay the annual income therefrom to my daughter
Eliza Rebecca Bushby, wife of Stephen Bushby, during her life and for her
sole and separate use during any coverture and so that she may not have
power to alienate or charge the same or any part thereof by way of antici-
pation, and after her decease to be possessed of the same fifth part upon
trust for such child or children of the said Eliza Rebecca Bushby as shall
attain the age of 21 years, or dying under that age shall leave issue; or being
a daughter or daughters shall attain that age or marry; and if more than one,
in equal shares, and as to the share of any daughter for her sole and sepa-
rate use, and in case there shall be no such child and the said Eliza Rebecca
Bushby shall be a widow at the time of her decease, upon such trusts for the
benefit of any person or persons as she shall by her last will direct or appoint.
and in default of and subject to any such appointment, or in case she shall
be married at the time of her decease, upon trust for the person or persons
who at the time of her decease would, under the statutes for the distribution
of the estates of persons dying intestate be entitled to the same in case she
had died possessed thereof intestate and without having been married, and
if more than one, in the like shares."

Eliza Rebecca Bushby mentioned in the will died subsequent to the testa-
tor, being, at the time of her death, the wife of one Bauldrey, who still
lives. She also had a son who died intestate after attaining the age of
twenty-one years, and who left a widow and two daughters.

Held, that in case Eliza Rebecca Bushby was survived by a child who
attained the age of twenty-one years, or who, dying under that age, left
issue, the property should go to such child or to its issue, if the child should
be dead;

-

-

That the provision as to the death of Eliza Rebecca Bushby while married
was upon condition that there should be no child or grandchild living. Id.
4. Cancellation of the signature to a will.
will being found in the testator's custody with the signature canceled — what
· presumption arising from the
acquiescence in a ruling is not a waiver of an exception.] The signature to a
will offered for probate was canceled by fourteen almost perpendicular
ink lines drawn across it. On an appeal from a decree admiting the will
to probate the Court of Appeals remitted the proceedings for a trial before
a jury in the Supreme Court to determine whether the will had been revoked
by the testator.

Held, that it would be presumed that the cancellation of the will was done
subsequent to its execution, but that before even a presumption of revoca-
tion could be raised it must be shown that the will when found in the
testator's care or custody was there found with the signature thus canceled;
That, consequently, if neither party had offered any evidence, the proponent
of the will would succeed, and hence that the contestant had the affirmative
of the issue;

That the contestant having excepted to the trial judge's ruling that the
proponent was entitled to the affirmative, did not, by thereafter acquiescing
in the ruling waive his right to urge his exception on appeal.

5.

MATTER OF HOPKINS...

Burden of proof as to a testator's unsoundness of mind.] The bur-
den of proving unsoundness or imbecility of mind in a testator rests upon
the party seeking to impeach the validity of the will for that cause.

MATTER OF NELSON

258

126

212

WILL- Continued.

PAGE.

6. - Status of the attesting witnesses- what they may testify to.] The
attesting witnesses to a will are regarded in the law as placed around the tes-
tator in order that no fraud may be practiced upon him in the execution of the
will and to ascertain and judge of his capacity. On this ground these wit-
nesses are permitted to testify as to the opinion they formed of the testa-
tor's capacity at the time of executing his will; and their opinions, and the
facts they state as occurring at the time, are generally to be particularly
regarded by the court. Id.

7. -Where a will can only be avoided by proof of undue influence.] Where
the testator had testamentary capacity and present knowledge of the contents
of a will, and where at its execution he was surrounded by all the safeguards
which the statute prescribed to prevent fraud and imposition, the will can
be avoided only by proof that it was obtained by influence amounting to
force or coercion. The burden of making such proof is upon the party attack-
ing the will. Id.

8. Fraud and undue influence not presumed.] Fraud and undue
influence are not to be presumed, but must be proven by the party relying
upon such allegations. Id.

9. - Trial by jury.] When a decree refusing to admit a will to probate,
on the ground that the will was not executed and attested in the manner pre-
scribed by law; that the testator was incompetent and that the will was
procured by undue influence, should be reversed and the issue as to the tes-
tator's competency and as to the exercise of undue influence be tried before
a jury, considered. Id.

10. - Determination of a testator's testamentary capacity.] While the court
should see that the testamentary act is freely exercised by the aged, weak
and infirm, without restraint, force or fraud, so as to promote their own
comfort and enjoyment, and should guard and protect them with the greatest
care and circumspection from imposition and improper influence, they should
hesitate to find that undue influence has been practiced, or that a testator
was of unsound mind, where a will is fair and reasonable, according to the
common instincts of mankind, and such as might, with propriety and jus-
tice, be made by a decedent. MATTER OF DONOHUE...
205

11. - What delusions do not incapacitate.] Insane delusions do not inca-
pacitate a man from making a valid will, unless the will be the result of such
insane delusions. Id.

12. Presumption from advanced years and enfeebled body and mind.]
There is no presumption against a will or codicil because made by a man
of advanced years, nor can testamentary incapacity be inferred from an
enfeebled condition of mind or body.

The law sustains testamentary dispositions made by persons of impaired
mental and bodily powers, provided the will is the free act of the testator,
and he has sufficient intelligence to comprehend the condition of his prop-
erty and the scope, meaning and effect of the provisions of the will or codi-
cil. Id.

13.
· Change of testamentary intention.] A change of testamentary
intention is sometimes an important circumstance bearing upon the question
of undue influence in procuring the will, but the force thereof depends
mainly upon its connection with associated facts; if made upon a reason sat-
isfactory to the testator, although such reason may seem inadequate to a
court investigating the question of undue influence, it furnishes of itself no
ground for setting aside a will. Id.

14.

A will need not be equitable.] A testator is not required to make
an equitable will and may, if he chooses to do so, exclude his children or
divide his estate among them unequally. Id.

15. -Testamentary capacity trial of, ordered to be had before a jury.]
When a decree of the Surrogate's Court, denying probate to a codicil on
the ground that the testator was incompetent to execute it, should be reversed
because the surrogate's conclusion is not supported by the evidence, and
the issue of the testator's competency should be tried before a jury, consid-
ered. Id.