therein set forth, and alleges that the work was not properly done nor completed in certain particulars, which by the terms of the contract were to be done, and counter-claims damages. Reply is a general denial. On the trial plaintiff testified that the contract produced by defendant B. was the original paper that was written on, that he signed it and also the other parties, and in reply to the question, "Is that the original contract?" said, "No sir, this contract is forged." Plaintiff then offered to prove that after the execution of the contract, and entering by the parties upon its performance, the defendant, without the knowledge or consent of the plaintiff, fraudulently altered the contract by inserting certain expressions, being of a material character, and being matters in regard to which defendant claimed the contract was not performed. To this defendant objected as not admissible under the pleadings that the alterations should have been stated in the complaint or reply. The objection was sustained, and plaintiff excepted. Plaintiff also of fered to show that they had fully performed all the provisions of the contract as agreed upon by the parties. Same objection, ruling, and exception. The contract produced was put in evidence, no further evidence was given, non-suit was ordered, and plaintiff excepted. E. W. Hunt, for applt. Held, The plaintiff is presumed to know how the original contract was; he is not presumed to know what alterations the defendant had afterwards inserted. He had a right to| suppose it would remain intact. He could not therefore be reasonably called upon to investigate as to its condition, or speculate as to its additions or alterations before he brought suit on it. If the contract was lost or destroyed, its contents could be proved by secondary evidence, although no allegation of loss or destruction was in the complaint. Board, &c., v. White, 30 Barb., 72. The contract is in the hands of defendant, he produces it upon notice and then plaintiff in effect claims it has been materially altered, in fact a forgery. struction could be proved without allegation in the complaint, why not that which is equivalent to such destruction as far as plaintiff's rights are concerned? If its loss or de The party seeking the benefit of the provisions of an instrument is expected to be prepared to meet such claims without specific notice. Here defendant claimed the benefit of certain conditions precedent in a contract in his hands. Under the above principle he would be expected to meet the charge of forgery in regard thereto, although not set up. Had the question arisen on the issue of defendant's counter-claim, there is no doubt that under the general denial of the reply the evidence would have been admissible. I think the same rule should apply when it became necessary for plaintiff to meet the same question in order to get rid of the apparent condition precedent. The evidence should have been admitted. Judgment reversed. WILLS. VESTED REMAINDER. N. Y. SUPREME COURT. GENERAL TERM. SECOND DEPT. Henry S. Berdell, applt., v. Peter C. F. Guyon et al., adm'rs, respts. Decided December, 1877. Where a will provides for the investment of a legacy, the income to be applied to the support of the legatee for life with remainder over to persons named, the legacy becomes vested on the death of testator. The words "" at and upon the decease of said " legatee or devisee indicate the time when the legacy or devise shall take effect in possession, and do not create a contingency Martha Guyon died in 1859, leav ing a last will and testament whereby she made a bequest in the following language: "Third, I direct my executors hereafter named to invest and keep invested, out of my estate, the sum of $2,000, and to apply the increase thereof to the support of my nephew, George B. Sequine, during the full term of his natural life, and at and upon the decease of said George B. Sequine, I direct the said sum of $2,000 to be invested as aforesaid, to be paid in equal parts to Mary Jane Guyon, wife of Peter Guyon, Martha Jane Guyon, wife of John Wesley Guyon, and Helena Sequine, children of said George B. Sequine, and Martha Guyon, daughter of said Peter Guyon." Martha Guyon, died before George G. J. Greenfield, for applt. De Groot, Rawson & Stafford, for respts. vested at the death of the testatrix. Held, That the legacy became The words "and at and upon the decease of said George B. Sequine," and similar words, have uniformily been held to indicate when the legacy shall take effect in possession, and not to make a contingency. This effect has been given to the words "then and when," which was held to refer to death of testator. 3 R., 19. "Shall go to such of them as shall be living," refers to death of testator. "After the death," held not to fix time of vesting, 1 Ves., 165; and so soon as " a devisee should attain twenty-four years of age," held to give a vested estate where the devisee died before arriving at that age. 37 R., 41. A bequest of income for life of £1,000 and "after her decease (of life tenant) bequest to five sisters," held, that the interest of each vested at death of testatrix. Roebuck v. Dorne, 2 Ves., Jr., 265: Many similar cases are cited in Moore v. Lynn, 25 Wend., 119; and the same principle is applied in Livingston v. Green, 52 N. Y., 118. Decree of the Surrogate affirmed with costs. Opinion by Barnard, P. J. B. Sequine, and respondents are her NATIONAL BANKS. TAXA administrators. The executors of Martha Guyon, by whose will the legacy was given, claim that Martha Guyon, daughter of Peter Guyon, had no vested interest in the legacy, and that none passed to her personal representatives. TION. U. S. SUPREME COURT. A. G. Adams et al., plffs. in error, v. The Mayor, &c., of Nashville. Decided November 5, 1877. No greater. proportion or percentage of tax should be levied upon shares of National Bank stock than upon other moneyed taxable capital in the hands of individuals. Where a statute was passed by the Legislature of a State relieving particular persons or particular articles from taxation, Held, That there was not a violation of the Act of Congress in relation to the taxation of the shares of stock in National Banks. Bank of Nashville, than is assessed on other moneyed capital in the hands of individuals, to wit, on such banking capital, and hence, that such taxation is illegal. The statute enacts that no tax shall be assessed upon the capital of a In error to the Supreme Court of State bank, but proceeds, in the same the State of Tennessee. The plaintiffs in error, who are stockholders in the Fourth National Bank of Nashville, Tennessee, filed their bill in the Chancery Court of that State against the defendant in error, a municipal corporation, to enjoin the collection of a tax imposed upon their shares of stock by said corporation, and to have the tax declared illegal and void. The bill was demurred to. The chancellor sustained the demurrer and dismissed the bill. Upon appeal to the Supreme Court of Tennessee, the decree of the chancellor was affirmed. It is contended that the statute of the United States which authorizes taxation by State authority of the shares of stock in a national bank, but provides that such taxation shall not be at a greater rate than is assess ed upon other moneyed capital in the hands of individuals, has been violated in the case of the present plaintiffs. 13 Stat. at Large, 102. The Act of the Legislature of the State of Tennessee, of March 1, 1869, provides that no tax shall be assessed upon the capital of any bank or joint stock company organized under the laws of that State. This, it is insisted, is an exemption from taxation of property in the hands of individual citizens, and operates to produce a greater rate of taxation on the plaintiffs' shares in the Fourth National section, to say that its shares shall be included in the valuation of the personal property of the owner, for the purpose of assessment for State, county and municipal taxation, at the same rate that is assessed upon other moneyed capital, and that in addition thereto, the real estate owned by the bank shall be subject to the same taxation as other real estate. Second. By an ordinance of the defendant's corporation, passed on the 18th of April, 1870, it is provided that certain interest-paying bonds issued by the said corporation shall be exempt from taxation by said corporation. It is said that by such exemption the complainants' shares are taxed at a greater rate than is assessed upon such bonds, and that, therefore, the taxation complained of is in violation of the act of Congress forbidding the taxation of national shares at a greater rate than is assessed upon other moneyed capital in the hands of individuals. Held, No error; the rate of taxation upon the shares should be the same or not greater than upon the moneyed capital of the individual citizen, which is liable to taxation. That is, no greater in the proportion or percentage of tax in the valuation of shares should be levied than upon other moneyed taxable capital in the hands of the citizen." 4 Wall., 256. See also, 23 Wall.,. 480. The act of Congress was not intended to curtail the State power on the subject of taxation. It simply required that capital invested in national banks should not be taxed at a greater rate than like property similarly invested. It was not intended to cut off the power to exempt particular kinds of property if the Legislature chose to do so. Homesteads, to a specified value, a certain amount of household furniture (the six plates, six knives and forks, six tea-cups and saucers, of the old statutes), the property of clergymen to some extent, school-houses, academies and libraries, are generally exempt from taxation. The discretionary power of the Legislature of the States over all these subjects remains as it was before the Act of Congress of June, 1864. The plain intention of that statute was to protect the corporations formed under its authority from an unfriendly discrimination against them of the power of State taxation. That particular persons or particular articles are relieved from taxation is not a matter to which either class can object. Judgment affirmed. WILLS. N. Y. SUPREME COURT. GENERAL Decided October, 1877. A bequest or devise in a will by a husband to his wife, for her use and support during her life, of real and personal estate to be used and possessed by her at her discretion, and the whole to be held in trust by his executor, and after death of his wife to be divided, &c., &c., does not give to the wife a disposing power by will of the property, and what remains on her death goes to the objects in his will stated. In 1860, one G. died, leaving a wil in and by which he provided, amongst other things, as follows: In the first place, "he gives to his wife, during her natural life, such portions of his library as she may wish," and in effect authorizes her to dispose of the remainder as she shall deem best. He then gives to his wife "all his real and personal estate, to be possessed and used by her in her discretion, and for her support and comfort during her natural life, having confidence in her that it will be used and retained, and the amount, the increase, and the residue, whether more or less, left sacred to the purposes to which we mutually agree to leave it." Then he authorizes her in a certain contingency to dispose of the household goods and furniture. Then, after stating the reasons therefor, he gives to certain benevolent societies "all my real and personal estate of whatever kind soever in her possession, and held by her up to and at the time of her decease, after funeral expenses are paid and provided for," and in same clause adds "to be held in trust by my executor, and after her decease he is to pay over to the societies." After the decease of G., his wife, with the greater portion of his property, moved from the State of Connecticut to New York, and on leaving, gave to G.'s executor a receipt for the property, and stating in subcertain objects stated, giving her authority stance that she was to hold the same to dispose of household goods and furniture, as in will stated. In this State the the residue, whether more or less, to go to wife made the defendant her agent Mrs. G., under the will, could have to invest moneys and make collections had the whole estate, if necessary, for her as her agent. She then made for her support and comfort, but, not a will and appointed plaintiff as her using it, she could not dispose of it executor, and died. by will, and plaintiff had no claim to the money. That the provision in Under that will plaintiff brings this action to recover of defendant the money and property in his hands as Mrs. G.'s agent. the will of G. as to remainder over on death of Mrs. G. to the societies named was valid. That on her death the legal custody of what remained was resumed by G.'s executor, and it was his duty to carry out G.'s will. Judgment affirmed. Opinion by Merwin, J.; Talcott and Smith, JJ., concur. JUDGMENT. JURISDICTION. N. Y. SUPREME COURT. GENERAL Decided October, 1877. At the time of the death of Mrs. G. she had in her possession about $3,000, in two mortgages which came from the increase of said property. After her death these mortgages were transferred to defendant. After this defendant reduced all the securities to money, and the two mortgages amongst the rest, and plaintiff joined in the assignments. Defendant then delivered over all the proceeds to G.'s executor in Connecticut. This is an appeal from an order discussing &c., applt. plaintiff's complaint. The money sought to be recovered by plaintiff was not mentioned in will of Mrs. G. John D. Teller, for applt. LeRoy Morgan, for respt. Held, That there is evidence sufficient to sustain the finding of the referee in this case. That from the will of G., from all the evidence in the case, and from the acts and construction put on the will by Mrs. G. herself, there can be no doubt but that Mrs. G. had a life estate in the property only, and that on her decease all that remained went as provided in the will of G., she had no disposing power over it or its in is valid if properly authenticated. Appeal from a judgment in favor of plaintiff, entered upon the decision of the Court on trial without jury, at Chautauqua Circuit, in May, 1876. The action was on a judgment of the Supreme Judicial Court of the State of Maine, recovered February 21, 1873, in favor of plaintiff against defendants. The defense was that no personal judgment was recovered, it being a suit commenced by trustee process. Upon the trial plaintiff offered in evidence a paper purporting to be a copy of a judgment of the Supreme Judicial Court of Maine, in and for the county of Androscog gin, with the certificate of the clerk of the Court under its seal. After the certificate is attached, a paper partly written, partly printed, being a copy |