5. The satisfaction of a legacy, by
an advancement made by the tes-
tator in his lifetime, if under any
circumstances a revocation of the
bequest or an alteration of the will
by which the bequest is made, in
the sense in which those terms are
used in the statute of wills (2 R.
S., 64, 65, §§ 42-48), is not so in
a case where the testator has de-
clared in the will itself that the
legacy should not be payable in
the event of an advancement, to
be made and characterized in a
specified manner, and that event
has happened.
id

7. A will, made before the Revised
Statutes, devised to the testator's
daughter, Chloe, her heirs and as-
signs forever, the residue of his
estate, real and personal, which
should remain after the payment
of his debts, funeral charges and
certain legacies; and if she should
die without lawful issue, then the
testator gave and bequeathed unto
the Theological Seminary of Au-
burn the sum of $10,000, for the
purpose of endowing a professor-
ship in said seminary, to be paid
to the trustees of said seminary,
in four equal annual payments,
after the death of said Chloe; Held,
that these words, in reference to
the time of payment to the trus-
tees of the seminary, so qualify
the former language as to show
that the determination of the ques-
tion, as to the bequest to the semi-
nary, was to be made at the death
of Chloe, and that it was the failure
of issue living at the death of his
daughter that the testator intended,
and not an indefinite failure of
issue; and, therefore, that the be-
quest is not void because limited
upon the happening of a contin-
gency which is too remote. Au-
burn Theological Seminary v. Kel-
logg,
83

8. Nor is the legacy void because re-
pugnant to a power, conferred by a
subsequent clause in the will upon
the guardian of the testator's daugh-
ter, to apply all or such part of the

estate as he should deem necessary,
to the education, maintenance and
support of said daughter during her
minority. The latter provision is
not an absolute disposition of the
whole estate in favor of the guar-
dian, nor does it confer upon him a
power to make such disposition,
otherwise than conditionally, upon
the reasonable necessity of its ap-
plication for that purpose. The
rule which sacrifices the former of
two contradictory clauses in a will,
is not applied, except where they
are totally irreconcilable. The gilt
to the seminary was therefore valid,
if there was personal estate, re-
maining at the death of the testa-
tor's daughter, out of which it
could be paid.

id

9. The trustees of the Auburn The
logical Seminary deing declared, la
the charter of that institution, ca
pable of taking and holding real and
personal estate and managing the
same for the purpose of benefiting
the funds of the institution, and
applying the avails of such funds
for the purpose of such institution,
which is declared to be the educa
tion of pious young men for the
gospel ministry, and such charter
providing for the appointment of
tutors and professors; Held, that
the trustees could take a bequest
for the purpose of endowing a pro-
fessorship, and, being for pious
uses, that it is no objection that
the bequest may create a perpe-
tuity.

id

10. The executor of Daniel Hyde
died, leaving the funds of the tes-
tator's estate, including more than
the amount bequeathed to the
plaintiffs, mingled with his own
funds, and they passed, so mingled,
into the hands of his executor, the
defendant; Held, that the defe -
dant was liable, after a proper de-
mand, to an action by the plaint tis
for the amount of their legacy; but
that the personal representatives of
Chloe Hyde, having an interest in
any claim which tends to take away
the fund bequeathed for her benefit
upon a specified contingency, or to
reduce it, for the benefit of another.
are necessary parties to such an ac-
tion.

id

[ Abatement of.]

11. A testator bequeathed a legacy
of $1200 to his son Enoch, and or-
dered that it, with other legacies,
should be paid to the legatees within
one year after his decease, without
directing by whom or out of what
fund. After this direction, the tes-
tator devised and bequeathed all
his real and personal estate to two
other sons, Alvah and George, and
their heirs, to be equally divided
between them, and by a subsequent
clause appointed Alvah and George
his executors. The personal estate
was insufficient to pay the legacy
of $1200; Held, that it should
abate in proportion to the defi-
ciency, and that no part thereof
could be charged on the real estate.
Reynolds v. Reynolds' Executors,

257

12. The bequest of "the sum of
$1200, and interest on the same,
contained in a bond and mortgage
described in the will, with a subse-
quent provision importing that the
same is given to the legatee for
life, with a limitation over, is not a
specific but a demonstrative legacy,
giving the income of the $1200 for
the life of the legatee, and not sub-
ject to ademption by the assignment
or extinction of the bond and mort-
gage in the lifetime of the testatrix.
Giddings v. Seward,

365

children of each grandchild re-
spectively; and whenever either of
the children of the grandson should
come of age, to pay over to that
child his or her proportion of the
one-half of said principal; with
the same provision for the children
of the grauddaughter; Held, First.
That each of the great-grandchild-
ren living at the death of the testa-
tor took an immediate vested inter-
est in an equal share of the fund
bequeathed to the children of his
parent, subject to be diminished in
quantity by the birth of subsequent
children before the first child of the
class became of age; Second. That
if the uncertainty of the quantity
of the interest of the children in
being at the death of the testator
would suspend the power of aliena-
tion (as, per PAIGE, J., it does not),
such suspension could only endure
for one life in being at the creation
of the estate, that of the parent;
Third. That, therefore, the will in-
volves no illegal suspension of the
absolute ownership or power of
alienation. Tucker v. Bishop, 402

LIBEL.

1. A written communication made by
a banker in the country to a mer-
cantile house in New-York, in re-
spect to the pecuniary responsibility
of a customer of such house, whose
note has been sent to him for col-
lection, is privileged. In order to
maintain an action for libel against
him, express malice must be shown,
and cannot be inferred from the
mere falsity of the statement. Lewis
v. Chapman,
369

2. A banker, by way of explaining
his delay for a week after its matu-
rity to remit the proceeds of a note
sent to him for collection, appended
to his letter, covering the remit-
tance, the words "Confidential
Had to hold over for a few days for
the accommodation of the makers;"
Held, that these words did not ne-
cessarily impute to the makers a
want of ability to meet their paper
at maturity, and that it was a ques-
tion for the jury whether they were
used in an injurious or an innocent

MORTGAGOR AND MORTGAGEE.

1. In order to secure a debt due to
M., H. assigned to him a mortgage,
executed by a third party, of several
village lots. An action for the fore-
closure of the mortgage was after-
wards commenced, in which H. and
M. joined as plaintiffs. At the sale,
under the decree in such action, M.
became the purchaser of all the lots
mortgaged, and claimed to hold the
same for his own benefit, discharged
of any trust or equity in favor of
H.; Held, that H.'s equity of re-
demption in the mortgage, assigned
by him to M., attached to the lands
purchased by the latter under the
foreclosure, and to the proceeds of
such lots as he sold, and that H.
was entitled to any surplus which
might be found, upon an account,
to be in his hands, after satisfying
the indebtedness for which the
mortgage was assigned to him as
security. Hoyt v. Martense, 231

2. The effect of the foreclosure was
simply to bar the equity of the
mortgagor and his grantees in the
land, and it had no operation upon
the rights of the plaintiffs as between
themselves. The equitable rule,
therefore, which forbids a trustee
or person acting in a fiduciary
capacity from speculating out of
the subject of the trust, applies as

MUNICIPAL CORPORATIONS.

1. Where the trustees of a village
are made, by its charter, commis-
sioners of highways, they are to
be regarded, in respect to that
function, not as independent public
officers, but as the agents of the
corporation, so as to make the
latter civilly responsible for their
acts or omissions, according to the
law of master and servant. Conrad
v. The Village of Ithaca,

158

2. The trustees of the village of
Ithaca, who are made by its char-
ter commissioners of highways for
the territory within its limits, con-
structed a bridge, within and with
the funds of the village, in so
negligent and unskillful a manner,
that, by means thereof, the plain-
tiff's building was carried away
during a freshet; Held, that the
building of the bridge was a cor-
porate act; that the powers given
to the trustees, as commissioners of
highways, vested in them not as
individuals or as independent pub-
lic officers, but as a part of the
municipal power of the corpora-
tion, for the benefit of which they
are to be exercised, and that the
corporation is therefore responsible
for their acts and omissions in that
capacity.

id

3. It seems that the principle upon
which municipal corporations are
thus liable is, that whenever an
individual or a corporation, for a
consideration received from the
sovereign power, has become bound
by agreement, either express or
implied, to do certain things, such
individual or corporation is liable,
in case of neglect to perform the
agreement, not only to a public
prosecution by indictment but to a
private action at the suit of every
person injured by such neglect.
The grant by the government, to a
municipality, of a portion of its

1. A promissory note given upon an
agreement for insurance, to be con-
summated upon the organization of
a mutual insurance company under
the act to provide for the incorpora-
tion of insurance companies (ch.
308 of 1849), and made for the
purpose of complying with the pro-
visions of the fifth section of said
act, and of constituting a part of
the capital stock thereby acquired,
is payable absolutely, may be in-
dorsed and transferred by the cor-
poration at its pleasure, and upon
the insolvency of the company may
be collected by its receiver. It is
no defence to the receiver's action
that the losses, to the payment of
which the money may be applied
when collected, have occurred after
the expiration of the period for
which the maker of the note was
insured. or that no assessment was
made in respect to such losses upon
other notes given to the company.
White v. Haight,
310

2. A mutual life insurance company
was authorized by its charter to
accumulate, from premiums re-
ceived and from the profits of their
investment, a fund to continue liable
for its losses during the term of its
existence. The representatives of
each person insured are entitled to
receive from such fund the amount
for which his life was originally
insured, and a proportionate share
of all the profits of the company
accumulated during the duration
of the policy; Held, that the ac-
cumulation of premiums and profits
made by the company is capital,
within the provisions of the Revised
Statutes (1 R. S., p. 414, § 1) for
taxing corporations. The People v.
Supervisors of New-York, 424

3. The act of June 29, 1858 (ch. 469),
providing that such company should
be subject to taxation in the san
manner as if incorporated under the
general law for the incorporation
of insurance companies, with a capi-
tal of $100,000, brought it into the
category of ordinary moneyed cor-
porations, subject to any changes in
the general law relating to taxation,
and consequently liable to be as-
sessed, under the act of July 21,
1853 (ch. 654), for the amount of
all surplus profits or reserved funds
exceeding ten per cent of its capi-
tal, in addition to its capital as fixed
at $100,000.

id

4. The act of March 24, 1855 (ch.
83), declaring it to have been the
intention and the true construction
of the act of June 29, 1853 (ch. 469),
that the life insurance companies
therein mentioned should be subject
to taxation on the sum of $100,000,
"and no more," introduces a new
rule for the taxation of such com-
panies after the passage of the de-
claratory act, but is ineffectual in re-
gard to the interpretation of the
prior acts in controversies pending
in the courts. The legislature has
no judicial authority, and cannot
control the courts in respect to the
construction of statutes in cases
arising before the declaratory sta
tute.

N.

NEGLIGENCE.

id

1. While it is the primary duty of a
railroad company to discover and
repair defects in fences, gates, &c.,
which it is bound to maintain, it
is the duty of an adjoining pro-
prietor interested in their security
to give notice to the company when
a defect has come to his knowledge.
Which of the parties is to be
charged with negligence must ordi-
narily be left to the discretion of
the jury upon the circumstances
of the particular case. Poler v.
N. Y. Central R. R. Co., 476

2. The gate constructed by the com-
pany at a farm crossing having got

out of repair, and liable to be
blown open, the owner of the farm,
without giving notice thereof to
the company, took measures to
secure the gate, which proved in-
effectual; his cattle escaped through
it and were killed upon the rail-
road. There was evidence of some
vigilance on the part of the com-
pany in searching for such defects,
and that this escaped observation;
Held, that whether the mode adopt-
ed for securing the gate was rea-
sonably judicious, and whether the
plaintiff was culpably negligent in
suffering his cattle to remain in a
field insufficiently fenced from the
railroad, or in having failed to give
notice to the company of the defect,
were questions of fact properly
submitted to the jury.

See COMMON CARRIER.

MUNICIPAL CORPORATION.

0.

ODD FELLOWS.

See ARBITRATION.

id

3. The master of a vessel having aa
unsettled account with her owner,
for his wages and for his receipts
from the earnings of the vessel and
disbursements on her account, as-
signed his claim to a third person.
The assignee brought an action, and
it appeared on the trial that there
was a balance due from the defen-
dant; Held, that under the Code
the defendant could not require the
master to be made a party to the
action for the purpose of enforcing
an accounting. He was a compe-
tent witness for either party, and
upon his examination the defendant
could have every benefit from his
testimony, and from the production
of books and papers, which he could
obtain from his accounting as a
party. Allen v. Smith,
415