TRUSTS—Continued.

-

PAGE

Substituted trustee — authority of, to enforce a judgment recovered by his
predecessor right of a creditor to recover the proportion of a premium of
insurance, which exceeds $500, paid on a policy for the benefit of his debtor's
wife.

See STOKES . AMERMAN..

178

Policy of insurance—what memorandum attached thereto by the assured
and action on his part impress it with a trust.
See PHIPARD v. PHIPARD.....

433

Will-when the income of a trust fund created thereby is payable from
the time of the death of the testator.

See BARROW . BARROW..

503

When a trust is attached to the executorial office · -a deceased trustee
represented by the survivors.

See STEINHARDT v. CUNNINGHAM..

375

See APPEAL.

UNDERTAKING-On appeal.

UNION FRFE SCHOOL

A personal judgment is recoverable by the trustees
of a Union Free School District against a party assessed for a school tax
implied contract obligation — objection on appeal not raised on trial.

See TORREY v. WILLARD.

UNION SOLDIER :

See ARMY.

-

UNITED STATES REVISED STATUTES — §§ 1094, 1259 — Aqueduct
commissioner-appointment of, under chapter 584, Laws of 1888 —retired United
States army officer eligible.

See PEOPLE v. DUANE...

--

USURY -- Exacted by an agent — knowledge thereof or assent thereto by the
principal must be shown to render the obligation void.] In order to render an
obligation for the payment of money, by way of mortgage or otherwise, void
on the ground of usury, it must be clearly shown that the party loaring the
money had knowledge of the usury or assented thereto.

No usurious payment exacted by the agent of the borrower will invalidate
the obligation, unless knowledge thereof or assent thereto on behalf of his
principal is shown beyond a reasonable doubt. Proof of knowledge thereof
subsequent to the loan is not sufficient. BLIVEN . LYDECKER..

UTICA- Reparing of Genesee street in Utica -obligation of the horse railroad
to pay therefor― Laws 1870, chap. 28.

See GILMORE v. CITY OF UTICA..

VENDOR AND PURCHASER-Specific performance — of an agreement
to convey land, the consideration to be paid for which is submitted to arbitration.]
The respective owners of abutting land agreed, in writing, that one should
convey to the other a right of way, as laid out and existing at the time, for
which there should be paid a valuable consideration, as to the amount of
which the parties were unable to agree. Such difference was submitted
to arbitrators, and the arbitrators subsequently made and signed an award,
which the party agreeing to convey the right of way refused to abide by.
Held, that a judgment for specific performance would be granted by the

court.

The method adopted in such cases of fixing the consideration is equivalent
to a liquidation of the same, and is equally obligatory upon the parties to
the contract. MAURY &. Post..

Bill of particulars—of the exact terms of an affirmative agreement as to
the compensation on a sale of real estate set up in the answer as having been
substituted for the one sued upon.

See MURRAY . MABIE..

Eminent domain · — on confirmation of the report of the commissioners of
appraisal the relation of vendor and purchaser arises.

See LENT v. N. Y. AND M. Ry. Co....

78

315

171

514

454

38

180

VENDOR AND PURCHASER- Continued.

Annuities charged upon an estate when the charge does not prevent a
sale, free therefrom, of the real estate.

See BRADFORD v. MOGK.

-

notice thereof arising from an occupation of a

Unrecorded mortgage -

See BASSETT v. WOOD..

part of the mortgaged premises by the mortgagee.

VESSEL Injury to a sailor using a winch machine with unguarded cogs ·
liability of the steamship company therefor.

See ELDRIDGE v. ATLAS STEAMSHIP Co...

See ARMY.

VETERAN:

WAIVER A municipal corporation, by seeking the benefits and privileges
conferred upon it by statute, waives the objection that the same is void and inopera-
tice because in violation of the Constitution.

See MATTER OF HAND STREET...

PAGE.

482

587

309

132

returnable at the clerk's office instead of at Special Term―

See PEOPLE EX REL. PADDOCK v. LEWIS...

521

274

WILL-Gift to any grandchild, born after the division of the estate, from the
remainder after the expiration of a life estate - preference of an after-born grand-
child over the other grandchildren who had shared in the estate upon its division.]
1. A testator by his will, among other things, provided: Of all my other
estate, whether real or personal, held by me, or in trust for me, at the time of
my death, it is my wish that my executors dispose of the same or put it in a
shape to divide among my grandchildren so that each may receive their share
on becoming of age.
It may so happen that my daughter, Harriet
Ann, may live to have other children after my death, and after my executors
may have divided my estate; in that case it is my wish that they come in and
share in the estate left my wife after her death, in preference to the others, so
that all my grandchildren may eventually, as near as may be, receive the same
amount."

The testator left his widow, one daughter and grandchildren surviving
him.

Two successive actions for partition and sale of the real estate, of which
the testator died seized, were brought and judgments were obtained in each
and certain of the lands were sold.

The widow, to whom a portion of the proceeds of sale of this property had
been set off for life in lieu of dower, subsequently died, and thereafter a
petition was presented by a grandchild of the testator, who was born to
his daughter Harriet Ann, after the judgment had been recovered in each of
the actions in partition, and also after an action had been brought and decided
in a suit instituted by the executors for the purpose of obtaining a construc-
tion of the will of the testator, for an order making her a party to the first
action in partition, and providing for the payment to her of such sum as she
should be entitled to out of the moneys which had been in such action paid
into court for the benefit of the widow during her life.

Held, that it was the evident intention of the will that this grandchild, born
of his daughter, Harriet Ann Marsh, before the final distribution of his estate,
should have an equal proportional part of this money with the other grand-
children of the testator, and participate equally with them in its distribution.
That an objection that this grandchild did not become entitled to share
equally with the others in the final distribution of the estate, for the reason that
she was born prior to the time when the executors had, under the decree of

WILL- Continued.

the surrogate, divided so much of the estate as was under their control,
although based upon a literal reading of the will, could not be maintained,
as it was not to be supposed that the testator intended that her right to this
equality should be made dependent upon her birth taking place after the
division of the estate by the executors.

In the action brought to procure a construction of the will, it was adjudged
"that no child born to said Harriet Marsh after the said Clarence did arrive at
lawful age, will be entitled to any share in said residuary estate." Clarence
was a grandson who attained his majority within a few months after the

decease of the testator.

Held, that, as this judgment was rendered long before the birth of the
grandchild of Harriet Ann Marsh, the petitioner, and made no provision
whatever for that event, or the protection of her possible interest in the estate
under the will of the testator, it could not be operative upon her.

HOTALING . MARSH..

2. Judgment in partition suit.] That, for the same reason, if the judg
ment in the first action for partition could be construed as intended to exclude
her from participation in the proceeds of the property of the estate, by bind-
ing her to a literal observance of the testator's directions, it could not be
permitted to be attended with that result. Id.

3. — Surrogate's decree.] The surrogate did not directly adjudge that the
grandchild, the petitioner, was entitled to no part of the moneys then to be
distributed, but he directed such a distribution to be made as excluded her
from a share of these moneys.

Held, that this direction of the surrogate did not prevent the petitioner
from receiving the full share of the testator's estate as it was intended to be
given by the will. Id.

PAGE

4. Right to proportional share.] That, as the effect of the surrogate's
decree, as well as of the judgment rendered in the action brought by the
executors for the construction of the will, had been to devote her proportionate
part of the other funds of the estate to the benefit of the other grandchildren
of the testator, the petitioner was entitled to be placed in their position, as to
the fund still remaining, for the reimbursement to her of the amount of her
share in this manner used and appropriated. Id.

5. When a trust is attached to the executorial office.] A testator, by his
will, provided as follows: "Item five. I give to my said trustees, executor and
executrix, full power and authority to sell any or all of my real estate at
private or public sale, and invest the proceeds thereof, or to let or lease the
same, as they may deem best for the interest of my family." The testator's
wife and one Heller were appointed executor and executrix and guardians of
the persons and estates of the children. The wife alone qualified. There
was no evidence that Heller, who died in 1887, had ever accepted the office of
trustee, or performed any act as such.

A mortgage which antedated the will, covering certain property of which
the testator died seized, was foreclosed in 1884. The wife was made a party
individually and as sole acting executrix, as were also the children and the
legatees named in the will of the testator.

An objection was made to the title acquired under this foreclosure, on the
ground that Heller was not made a party thereto, and that a valid trust was
created by the will in the wife and in Heller, as individuals, apart from the
executorial office, and that, consequently, Heller's equity of redemption was
not cut off by the foreclosure.

Held, that this objection could not be sustained.

That the trust, if any existed, was attached to the executorial office, and,
under the circumstances, Heller was not a necessary party to the foreclosure
suit. STEINHARDT v. CUNNINGHAM.....

6. A deceased trustee represented by the survivor.] That, even if a valid
trust were created, distinct from the executorial office, and the fee of the real
estate were vested in the wife and Heller, as individuals, the title acquired
under the foreclosure would not be impaired by reason of the failure to make
Heller a party defendant, as by the death of Heller the wife became sole sur
viving trustee. Id.

325

375

7. An acceptance of the proceeds of a judicial sale estops a party from
setting up its invalidity.] That the title was further sustained by the fact that
the wife and all the children, being of full age, consented that the surplus
money arising upon the foreclosure be paid to the executrix, which was done;
after which the children and legatees, who were paid therefrom by the execu-
trix, could not be permitted to question the validity of the foreclosure pro-
ceedings. Id.

8.--Selling more property than is necessary to release the debt.] That the
fact that the referee in the foreclosure suit sold more property than it was neces-
sary to sell in order to pay the plaintiff therein the amount due to him did not
present an objection to the title, which the purchaser of the property under
an executory contract for the purchase thereof could raise. Id.

9. - Legacy — when charged upon real property — not extinguished or paid
by reason of board, etc., given to the legatee by the general legatee and devisee
named in the will.] A testator, by his will, provided as follows: "I give and
bequeath to my dear wife, Docia Ann Martin, all of my real and personal
property of every name and nature whatsoever, with this provision, however:
My said wife is to pay to my niece, Sarah A. Bartholomew, the sum of one
thousand dollars, without interest, at any time when my said wife chooses so
to pay the same; but in case of the death of my said wife before the pay-
ment thereof, then, and in that case, the same is to be paid out of the per-
sonal property, if there shall be sufficient for that purpose; and if not sufficient
personal property, then the sum remaining unpaid thereof is to be paid out of
the real estate.'

The wife was authorized to sell and convey the property given her by the
will," said one thousand dollars to be paid as provided, however."

Said Sarah A. Bartholomew resided with the widow until the death of the
former, doing work in the house and about the barn and farm. After the
death of Sarah A. Bartholomew, the widow conveyed the premises by war-
ranty deed, containing a reservation of possession during her life, and providing
that, at her death, the grantees in the deed mentioned were to have full posses-
sion thereof. Said grantees executed to her a life lease of said premises; no
consideration in money or property was actually paid at the time of this con-
veyance or lease.

Held, that a claim that the legacy to Sarah A. Bartholomew was paid by
board, care and clothing furnished to her during her time of residence with the
widow, could not be maintained, as, under the circumstances existing in this
case, the law does not imply an agreement to pay, because it is not presumed
that one party expected to charge, or the other to pay, for what was furnished.
That the legacy to Sarah A. Bartholomew vested upon the death of the
testator, and was then a charge upon the real estate, payable upon the death
of the widow, which lien was not in any manner affected by the deed and lease
above mentioned. BARTHOLOMEW v. MERRIAM.

10.- Annuities charged upon an estate-when the charge does not prevent
a sale, free therefrom, of the real estate.] A testator by a will, which conveyed
his estate in trust to his executors and trustees named therein, and conferred
upon them power to convey his real estate in fee simple in their discretion,
after giving out of the income of his estate certain legacies, further provided:
"Nine. For each and every of the foregoing annuities the reckonable year
shall begin at the date of my decease, and I make each and every of the same
a first charge upon my estate into whose hands soever it may come.'

Held, that the word “estate,” as used in the will, referred to the title, and not
to the corpus of the property, and that the lien of the annuities attached to
the interest which the testator had in all of his property, and became a specific
charge upon none.

That the executors had power to convey the real estate free from any lien or
charge thereon. BRADFORD v. MOGK....

11.

-

Devise of a farm, subject to a provision for the support of the testator's
widow out of the proceeds and avails thereof, gives the widow a lien upon the crops.]
A testator, by his will, gave to his two sons, Byron G. Downer and John B..
Downer, jointly, the use of his farm, with all his personal estate, to be held

PAGE.

280

482

WILL- Continued.

and used by them, jointly, for the period of their naturai ves, and to the
survivor of them. The gift was made subject to the following provision:

"I hereby direct and provide that out of the proceeds and avails of said farm
they, or the survivor of them, in case one shall die before the other, shall
support, care for and maintain on the said farm my wife, Maria Downer, and
my daughter; Celestia Downer, in accordance with their circumstances and
condition in life, and I hereby make their, and each of their, support a charge
upon said farm."

Byron G. Downer, the survivor of the two sons, transferred to one Sylvanus
Walker, by way of mortgage, his title to the farm and the rents, issues, profits
and proceeds thereof, "after paying therefrom the necessary expenses of
cultivating, tilling and running the same in a workmanlike manner, and after
paying the necessary living expenses of my mother, Maria Downer, as provided
in the will" of George W. Downer.

In an action of replevin, brought by Walker to recover the possession of
certain crops consisting of oats, cabbage, straw and hay raised upon this farm:
Held, that the provisions of the will did not merely make the support of
Maria Downer a charge upon the land, but that she was entitled to her sup-
port out of the proceeds or profits thereof, and that the title which Byron Ĝ.
Downer, and his grantee, Sylvanus Walker, had to all of the crops was
subordinate to this lien of the widow.

PAGE

That it was incumbent upon Walker, before asking the interposition of the
court in his behalf, to show that Maria Downer, the widow, had received her
support according to her needs and circumstances. WALKER v. Downer.... 75
12. When the income of a trust fund created thereby is payable from the time
of the death of the testator.] A testator, by his will, provided as follows:
I do give and bequeath to my executors hereinafter named, and the survivor
of them, the sum of $60,000, in trust, that they invest the same in good
securities, and that until the death of the survivor of my nephew, John D.
Barrow, and niece, Mary L. Barrow, they apply the net interest and income
therefrom to the use of my nephews and nieces, children of my sister,
Elizabeth M. Barrow, as follows, namely: To John D. Barrow, Rebecca
H. Barrow, Elizabeth Barrow, George Barrow and Mary L. Barrow, each one
equal share annually, and every year, in half-yearly payments."

The testator's estate was inventoried at the sum of $461,575, the assets of
which consisted of bank stocks, cotton-mill stocks, gas-light stocks, etc.,
interest-bearing securities, none of which were such as the law permits
trustees to invest in.

Held, that the income of the $60,000 was payable to the beneficiaries named
in the will from the date of the death of the testator. BARROW v. BARROW.. 508

13. A gift of the residue to the children of the testator's sister does not
cover the case of a grandchild of the sister.] A testator, by his will, provided as
follows: "I further order and direct that, after the decease of my mother and
sister Shannon and my wife, Nancy G. Pickell, the remainder of my estate,
should there be any, it shall be divided among the children of my sister
Shannon and the children of my brother, John Pickell, according to the
discretion and judgment of my wife, Nancy G. Pickell, as she shall direct."
The power of appointment given to Nancy G. Pickell was not executed
by her. At the time of the death of the testator one of the children of the
testator's sister Shannon had died, leaving her surviving a child then living.
Held, that, under the provisions of the will, such grandchild of Mrs.
Shannon took no interest in the estate. SHANNON v. PICKELL.

14.- When a mother and each of several children take equal shares under a
gift to them of the residue of an estate.] The testatrix, by her will, provided
as follows: "I do give, devise and bequeath all the rest, residue and remainder
of my property and estate, both real, personal and mixed, of every name and
nature and wherever situate, to my adopted daughter, Augusta C. Graves,
wife of John C. Graves, of Buffalo, New York, and to the child or children
of said Augusta C. Graves, who shall be living at the time of my death, to
be divided equally, share and share alike, between the said Augusta C. Graves
and the said child or children.”

Held, that each of the children of Mrs. Graves took a share of the residue
equal to that of its mother. GRAVES v. GRAVES...

127

58