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5. In an action to recover damages for be

ing deprived of the use of a farm crossing while defendant was rebuilding a bridge a witness was allowed to testify what in his opinion was the difference in value of the use of the farm without and with the obstruction Held, proper. – Vanden

burgh v. The B. & A. RR. CO., 474. 6. D. conveyed to plaintiffs six acres, a mill

site on the same, the use of all the waters of a creek and the right to use and maintain a dam across it and to convey its waters to the mill. The dam was a quarter of a mile distant from the six acres. Plaintiffs went into possession, under their deed, of the mill, the dam and the raceway and put the same in good condition. Defendant, who as against plaintiffs makes no claim of title or possession, neg: ligently floated logs down the stream and destroyed the dam. D. had no title to the land on which the dam and raceway were, but claimed a right to maintain them. Hell, That plaintiffs could recover damages for the destruction of the dam.-Trevitt et al. v. Barnes et al., 560.

1881, the whole of the real as well as the personal property was impressed with a trust for the benefit of E. W. and for the benefit of S. and her children, and that upon the death of W. E. W. such trust vested in the Supreme Court.-In re pe

tition of Waring et al., 120. 2. One T. conveyed certain personal prop

erty to D. upon the following trusts : "To pay all existing debts and liabilities of the grantor, to invest the residue and apply the income thereof to the use of the grantor's wife during her life, and after her death to the use of the grantor for his life, and after the death of both to pay over the principal to their children.” În an action brought during the life of the grantor's wife by a judgment creditor of T. to have the trust deed declared void as against him, except in so far as it provided for the payment of existing debts and the trust for the grantor's wife ; to have the property transferred by said trust deed adjudged to be vested in the said grantor, subject only to the estate of the trustee for the life of the wife, and to have such estate or interest of the grantor subjected to the payment of the plaintiff's judgment through the medium of a receiver. Hell, That the deed was valid during the lifetime of the wife, and that there was no estate or interest in the grantor which a receiver could take.Meyer v. Thomson et al., 253.




See CORPORATIONS, 15, 16, 21-26, 29; EXECU



1. E. W. conveyed on Nov. 8, 1876, certain

real property to W. E W., who executed an agreement to convey one-half of the same to S. upon the death of E W. and equally to the children of S. or the issue of her deceased child or children if she had died leaving issue. Subsequently, by an instrument executed March 16, 1881, by E. W., W. E, W. and S., which recited that a previous assignment of certain real and personal property had been made by E W to W. E. W. and that a declaration of trust as to the real estate had been made by the latter, it was agreed that W. E. W. should hold the personal property in trust during the life of E. W., to pay a certain sum annually to him from the income thereof, and to divide the surplus of said income, and the net rents, issues and profits from the real estate previously conveyed to W. E W. equally between W. E. W. and S during the life of E. W., and upon his death to divide any surplus income then unpaid and all of the personal property equally between W. E. W. and S. W. E. W. died during the life of E. W., leaving him surviving his wife, to whom he devised all his estate both real and personal. Held, That by the instrument executed on March 16,

3. A. consigned his real estate and personal

property to B. and took back two agreements indicating that the property was conveyed to enable the grantee to carry out certain purposes. Subsequently an agreement in writing was made by both which recited that the prior agreements constituted a declaration of trust and that B. held the property in trust for said purposes. Held, That the facts were sufli. cient to authorize the court to determine that an apparent legal trust was created and that some of its objects remained unperformed at the death of B. and these facts authorized the appointment of a trustee by the Supreme Court.-In re pe

tition of Waring et al., 420. 4. In an action to declare a trust void the

trustee is not chargeable with more than the rents received by him, there being no allegation or implication of wrongful entry or trespass. -Jackson v. Andreus et

al., 505. See BAR, 1, 3; CREDITOR'S ACTION, 2, 3; Ex

ECUTION, 5; MORTGAGE, 7, 14, 15; WILLS, 9, 21-25.


1. The defendant in an action on the morn

ing of the return day of the summons executed an assignment of personal property to her father in alleged payment of a debt and delivered it to his attorney, who is not shown to have had authority to receive anything but money; the attorney delivered it to a son of his client who delivered it to his father in the evening. In an action upon an undertaking given on the adjournment of the action that afternoon the witnesses who testified in relation to the assignment and its deliv. ery were all interested in the event. Held, That there was evidence sufficient to sustain a finding that there was a breach of the conditions of the under

taking.--Sheridan v. Farnham, 470. See APPEAL, 7, 16; ARREST, 4, 5; ATTACH

VILLAGES. 1. Defendant is a village corporation carved

out of the territory of New Castle, and incorporated under Chap. 291, Laws of 1870. Plaintiff's horse was killed by reason of a defect in a bridge which was within the limits of the village. Held, That the town and not the village is liable.- Washburn v. The Village of Mt. Kisco, 173.


6,7; PLEADING, 6, 12; PRACTICE, 11.

MENT, 1-4.



USURY. 1. Defendant having taken excessive inter

est from one McR., the latter agreed to discharge all claims in his favor on account tiereof, and not sue or allow any suit to be brought against defendant on account thereof, and in consideration thereof defendant agreed to discharge all of his indebtedness to defendant which might remain after applying all other collections available. Hela, That this operated as a release and discharge of McR.'s cause of action and was a good defense to an action brought by McR.'s receiver to recover such excessive interest, and that the original liability of defendant was not revived upon its mere failure to perform its part of the agreement.--Moorehouse

v. The Second Natl. Bk., 380. 2. Where the borrower, in addition to in

terest, agrees to pay the expense of a search and for getting the papers ready, this is not a basis for usury.-Chesebro v.

Tilden, 467. 3. The payment by the borrower and sur

render of a note executed by the lender, in addition to interest on the sum borrowed, is not usury when such payment is made as a fair compensation for the trouble and expense to which the lender was subjected and not as a device to ob

tain more than legal interest.-Id. See MORTGAGE, 22, 30, 31.

WATERCOURSE. 1. A person has no right by ditches and

artificial channels to take water from its natural course and accustomed channels and throw it upon the lands of another ; and the rule is the same even if the water so diverted is all surface water.–Vernum

v. Wheeler, 171. 2. A person is liable for damage to the

adjoining owner if he so diverts water and discharges it first upon his own premises where it sinks into the soil and by percolation through the soil reaches the premises of the adjoining

owner.-Id. 3. When a corporation or individual at

tempts by artificial means to interfere with the natural action of water to serve its or his own purposes, he must see to it that it shall be done in such a way as shall not unnecessarily do any injury to his neighbor.- Mitchell v. The N. Y., L. E. & W. RR. CO., 199.

WILLS. 1. Where the testatrix had testamentary

capacity, a present knowledge of the contents of the will, and was surrounded by all the safeguards provided by the statute, the will can be avoided only by influence amounting to force or coercion and proof that it was obtained by this coercion.

In re will of Martin, 1. 2. To establish fraud or undue influence in

the execution of a will something more must be shown than the relation of parent and child and an opportunity for unfair dealing There must be evidence that the parent was imposed upon or overcome by the practices of the child to the benefit of the latter.-Id.

VENUE. 1. Where plaintiff brought an action against

defendants as Commissioners of Highways of a town in the County of Schenectady, charging that he had rendered services to their predecessors in office and that defendants, as such commissioners, had refused to pay him therefor, and had neglected to raise money to pay him as was their duty, Helil, That, under Code Civ. Pro., $ 983, subd. 2, Schenectady was the proper county for the trial of the action. -Clute v. Robinson et al., 120.

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3. The testator was dying of acute peritoni

tis, was heavy and listless, and under the influence of opiates. About an hour and a half before his death, but not at his request, a lawyer was summoned to make his will. The testator did not volunteer to the lawyer any suggestions as to the provisions of the will and all instructions were gotten by questioning him in the simplest way. Once the testator said he would not make a will that night, but the doctors advised him that he had not long to live. Held, That probate should be refused and that the issues of undue influence and a want of testable capacity must be tried by a jury.-Renihan v.

Dennin, 65. 4. The will of testatrix, after providing that

her executor should hold two parcels of real estate in trust to apply the income thereof to the maintenance of her mother and youngest son, or should sell the same and apply the income derived from the proceeds to the same purpose, and that, upon the death of her mother and the coming of age of her youngest son, one of such parcels, or the avails thereof if it should have been sold, should be given to her youngest son, contained the following clause : And all the rest, residue and remainder of my property and estate I do then give, devise and bequeath to my children John, Thomas, and Mary, the survivor and survivors of them, share and share alike." Held, That the right to take the residuum of the estate vested at the time of the death of the testatrix in the three children named.-In re account

ing of Mahan, 122. 5. The will in question was in testator's

handwriting, and contained no attestation clause. One of the witnesses testified to facts showing the will to have been properly executed. The other testified that testator told him that he had a paper he desired him to witness, and while witness was signing his name told him it was his will and asked him to sign as witness ; that witness advised testator to have it redrawn, on account of informality, and testator replied he had no fears of it; that witness then finished his signature. Held, That the evidence was sufficient to authorize a finding that there was a complete execution and attestation of the will.-In

re will of Phillips, 140. 6. By testator's will the residue of the estate

was given to his wife to be used and enjoyed by her during her life, and after her death it was given to his children to be equally divided between them. The will also directed the executors to collect in all debts, etc., due to testator, and to pay over the proceeds to the person or persons entitled thereto. The executors were not named as trustees, and no trust was in terms created. Held, That it was

the duty of the executors to turn the personal effects into money and deliver the same to the widow that she might use and enjoy the same; that there was nothing requiring the executors to act as trustees, holding the body of the estate during the life of the widow.-In re accounting of

Woods, 188. 7. A will providing for an estate in remain

der in case of the death of another, refers to a natural and not a civil death.

Avery v. Everett et al., 268. 8. At common law a felon imprisoned for

life could acquire an estate by grant or devise, which would not devolve upon his heirs by reason of his civil death, nor in such case would an estate in remainder dependent upon his “death " vest in in

terest or in possession.--1d. 9. The will of the testator contained the

following clause: “I do give and bequeath to my son, R. W., my friends, W. H. M. and C. G., and my nephews, J. T. W., R. R. W., and E. B. W., and my sonin-law E. M., the survivor and survivors of them, the sum of $100,000, relying upon them to dispose of the same for the benefit of such charitable and benevolent and educational purposes as they shall judge will most promote the comfort and improve the condition of the poor; or, in case any of my descendants should be. come poor and needy, then to apply in whole or in part to such descendants." Held, That there was no attempt to create an unauthorized trust, but that the gift was an absolute one and the provision of the will was valid.-- Willets et al. v.

Willets et al., 285. 10. An action for the construction of a will

cannot be supported unless it appear that there is an actual disagreement between the plaintiff and the executors as to the provisions of the will, the true meaning of which is necessary to the present direction and action of the executor or trustee.- Wead et al. v. Cantuell et al., 290.

11. The court will not anticipate difficulties

nor decide upon the construction of remainders, etc., which may never take effect, especially where the will is clear as to the present duty of the trustee or ex

ecutor.-Id, 12. As the wife of a contestant of a will,

who is also an heir at law of the decedent, would become vested with an inchoate right of dower in the lands of decedent if the will should be declared void and refused probate, she is interested in the event of the proceeding, and so disqualified, under $ 8.9 of the Code, from testifying as to personal transactions or communications with the deceased for the purpose of showing her mental and physical condition; and this, although both are legatees under the will.-In re pro

bate will of Hewitt, 296. 13. A devise of a parcel of testator's farm to

his widow, “to have and to hold for her benefit and support," and “all the remainder of my property” to his son, gives the widow an estate in fee; the intent to give a less estate not appearing by express terms nor being necessarily implied in the terms of the devise. “The remainder of my property” refers not to the devise of a remainder in fee, but rather to all the property not included in the devise to

the widow. – Crain v. Wright, 299. 14. Certain terms of a will held to indicate

an intention on testator's part to charge the payment of legacies upon real estate.

-Cornue v. Webb et al., 309. 15. Testator, after giving his widow a life

estate, directed that at her death the property should be divided in equal shares, one of which he gave absolutely to each of his children. The will provided that if either of his children died without issue his share should be divided between the survivors and their heirs. Held, That the words of survivorship related to the death of the widow and the period of distribution, and at that time each child was entitled to his share absolutely, and the subsequent death of either without issue vested no estate in the sur

vivors.-Miller v. McBlain, 315. 16. The will of the testator contained the

following clause: “I give and devise to my wife, J. M. D. E, all the rest and resiidue of my real estate as long as she shall remain unmarried and my widow; but on her decease or remarriage, the remainder I give and bequeath to my son H. or his heirs Held, That H. having survived the testator the fee vested in him, and that a deed executed by him and testator's widow, conveyed the fee of property which was included in the residuum.


Miller et al. v. Caragher, 330. 17. By testator's will the executors were di

after the death of the widow, to sell his real estate, divide the proceeds and give certain shares thereof to certain religious associations which were then to testator's knowledge not incorporated, but which were duly incorporated before the widow's death. Held, That the bequests did not vest till the widow's death and the legatees named having been duly incorporated at that time were capable of taking, and that it was sufficient that they were so described that they could be ascertained and known when the right to receive the legacies existed.-Shipman

v. Rollins et al., 344. 18. The will directed a certain sum to be

invested and portions of the income paid

to E. and L., the balance to a charitable institution unless testator's sister should become a widow and then to her. On the death of either her share of the in. come to be paid to said institution and also the principal on the death of E. L. and said sister. Held, That the bequest

of the principal was void.-Id. 19. When by the will of a testator he de

vises and bequeaths all his property, real and personal, as provided by the laws of the state of New York in cases of intestacy, whatever rights or interests his next of kin are entitled to in his estate are derived from the will and not from the provisions of the statute, and the effect of the reference made to the laws of the state in cases of intestacy is merely to determine who the persons are who should take under the direction contained in the will and the extent of the interests so to be taken.-DeCaumont et al. v. Bogert

et al., 369. 20. The provisions of the statute in regard

to advancements do not apply to such a case, and transfers of personal property made by the testator to certain of his next of kin previous to the execution of his will are not advancements to them, and are not intended to be such by him when it appears that he did not contem

plate an equal division of his estate. - Id. 21. Testator left a widow and four children,

two of whom were minors. By his will he left his estate to his executors in trust to invest and pay the income to his wife and children until all or the youngest survivor should come of age and then to divide the estate, two-thirds to be divided among the children, the shares of the two daughters to be held in trust for them respectively and the income paid to them during their lives, with power of sale to carry out the trust, etc. One of the daughters was a minor. Held, That the suspension of alienation for two minorities would be equivalent to one for two lives ; that the trust for the minor daughter was lawful, but that for the other daughter was void, it being for three lives.-Benedict et al v Webb, 382.

22. The will of testatrix devised her estate

in trust to her executors to divide the same into six equal parts; to convey two of such parts to two of her sons ; to divide the income of the remaining four equal parts among her three remaining sons and her daughter in equal shares equally during their several and respective lives; upon their several and respective deaths to convey the shares of the principal producing the income of the one so dying to his or her child or children upon their arriving at the age of twenty-one years, and to the issue of any such children who might be deceased at the death of his par.

ent, but if any such children should die before the age of twenty-one, and without leaving issue, then the share of the one so dying should become part of the residuary estate for the benefit of all the testatrix' children, in the same share and under the same trusts and limitations be. fore provided for. Held, That the trust was valid of one-fourth for each terminable as to each at his or her death ; that the children referred to in the direction as to contingent remainders are the chil. dren of the beneficiaries. Tiers v. Tiers

et al., 387. 23. It also provided that in the event of

either of the testatrix' children dying without issue, but leaving a wife or husband surviving, then the income of the share of the one so dying should be paid to the surviving wife or husband during life, and, after the death or marriage of such surviving wife or husband should be divided according to the terms of the

will. Held, void.-Id. 24. Testator's will directed the executors to

divide the residuary estate equally among certain children named, each to have the use and benefit of one share for life, with reversion of the principal to his or her issue, if any. Held, That the children were entitled to the use of their shares and that no trust was interposed between them and the actual enjoyment of the shares. - Williams et al. v. Freeman et

al., 409. 25. The will also gave the executors a power

of sale and directed that the proceeds and other moneys not needed for immediate use be deposited or invested as directed until a final settlement. No direction was given as to the income and no specific words creating a trust. Held, That no trust was created by this provision.

-la. 26. Testator by his will gave all his prop

erty, real and personal, to his wife " to have and hold the same, and to receive and enjoy as her own property, the rents, issues and profits therefrom," for life in lieu of dower. He left two farms and on them agricultural implements, live stock and farm produce, which the executor did

not include in his account. Held, That testator intended that the widow should enjoy and use the property as he had done and in the same form in which he left it, and not that the executor should sell the personal property and pay her only the income on the proceeds.- In re

accounting of Yates, 428. 27. Testator by his will bequeathed to his

wife “ The sum of five hundred dollars, payable yearly and every year out of the income of my estate," and to his daughter he bequeathed a bond and mortgage for $2,000 against D. It appeared that the income of the estate, exclusive of the bond and mortgage, was not sufficient to pay the legacy to his wife. Held, That the provision for the widow is the dominant one and that it was the duty of the exec. utors to hold the mortgage during the widow's life and use the interest towards making up the annuity, and upon her death to transfer the mortgage or its proceeds to the daughter.-Stimson et al. v.

Vroman et al., 431. 28. The will of testator provided that on the

death of his widow his estate should be divided into five equal parts, one of which he gave to his executors in trust for his son; it then provided as to three of his children, “the other equal one fifth-part thereof to” the son or daughter respectively, “and if she (or he) leaves no child or children surviving then to pay the same to my other children herein named or their heirs or representatives ;" as to the other daughter there was a similar provision, omitting the word “no." Held, That the ownership and power of disposition over their shares by all of the chil. dren except the first named was not absolute, but conditional ; that it was the intention of testator that the possession and control of said shares should be given to the children named personally to be held to await the event on which absolute ownership depended ; that his children were all to be equally provided for, and that the word "no" should be inserted in the last provision.-In re accounting of

exrs. of Nanny, 532. See ('ONTRACT, 3, 13; EXECUTORS, 2.

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