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Injunction against appropriation of waters of Nonexpert witnesses cannot give opinions as a running stream before paying damages is to the testator's mental condition, unless they properly refused where the damage is nominal have had sufficient knowledge and personal oband the appropriator is able to pay as soon as servation to form correct conclusion, or unless the amount is ascertained, and when granting they have testified to sufficient facts upon which writ would work great hardship.-New Haven to base opinion.-Appeal of Turner (Conn.) 310. Water Co. v. Borough of Wallingford (Conn.)
One may make will if he understands the 235.
nature of transaction, although mentally incaWhere a municipal corporation appropriates pable of attending to business generally.--Apthe waters of a running stream, then abandons peal of Turner (Conn.) 310. part of it, but afterwards reappropriates it,
Qualified witness may state if, in his opinmerely buying property, during the abandon- ion, testator's understanding was sufficient to ment, along said stream, including a mill with transact ordinary business.-Appeal of Turner “the water privileges thereto," does not consti- (Conn.) 310. tute an adverse appropriation.-New Haven Water Co. v. Borough of Wallingford (Conn.) 235. A legacy payable on the termination of a life
estate in the property out of which the fund for In action between upper and lower riparian the
legacy is to be created becomes vested immeproprietors, held, that the lower proprietors had diately on the death of the testator.-In re Journo right to control the gates at the foot of a pond ney's Estate (Del. Ch.) 795. emptying into the stream in question by prescription of contract.-Weare v. Chase (Me.) 900.
Insane delusion in regard to object of testa
tor's benefaction invalidates will when it en§ 4. Conveyances and contracts.
ters into it, though testator is capable of atRight to maintain tide mill is appurtenant to tending to business.-In re Segur's Will (Vt.) water way. Hence a purchaser of mill site who 342. does not acquire water way has no right to use § 2. Requisites and validity. water.--Urch v. City of Portsmouth (N. H.)
Mere kindness of treatment or moderate and 112.
reasonable solicitation will not amount to unWhere, by an agreement, each party was to due influence, when yielded to from sense of tap a main water pipe with a 34-inch service duty and without restraint.-Appeal of Turner pipe, the right of each is limited to the insertion (Conn.) 310. in the main pipe of a 34-inch service pipe, and each is entitled to the same quantity of water. and independence must be overcome, and dom
To constitute undue influence, free agency -Van Horn v. Clark (N. J. Ch.) 643.
ination or control over the mind must have Where two persons each paid one-half of the constrained, contrary to the actor's will, what expense of laying and repairing an aqueduct, to he was unable to refuse or too weak to resist. be their joint property, each was entitled to one- - Appeal of Turner (Conn.) 310. half of the water conveyed by the main pipe.Van Horn v. Clark (N. J. Ch.) 643.
Clause in will that legacy to legatee predeceas
ing testatrix shall not lapse, but go to heirs at Where the right of each party to an agree- law of such legatee, held not revoked by codicil, ment is limited to the insertion of a 34-inch directing that legacy to such deceased legatee pipe in the main water pipe, and one party shall go to his issue.-Bringhurst v. Orth (Del. makes other taps, or permits a third party to Ch.) 783. tap, without the consent of the other, he will be enjoined from using such taps.—Van Horn v. far as latter expressly revokes, or is shown to
Will is revoked by subsequent will only so Clark (N. J. Ch.) 673.
be inconsistent with, the former.-Lane v. Hill § 5. Public water supply.
(N. H.) 393. Though control of public water supply, and
Destruction of a will does not revive a forsole right to turn it on and cut it off, is in mer one, in the absence of evidence that such borough council, it has no right, in absence of was testator's intention, especially where it regulation, to cut it off, by reason of consumer's contains a clause of revocation.-Lane v. Hill failure to comply with ordinances respecting (N. H.) 393. plumbing.-Johnson v. Borough of Belmar (N. J. Ch.) 166.
Mistake in description of legatee held not to
defeat bequest.–Van Nostrand v. Board of DoGeneral act relating to boroughs (P. L. 1897, mestic Missions of Reformed Church in America p. 285) transfers to borough council control over (N. J. Ch.) 472. waterworks previously existing. - Walling
- v. Borough of Deckertown (N. J. Sup.) 864.
Birth of a posthumous child entitled, under 3 Gen. St. p. 3760, $ 19, to take the same share
as though his father had died intestate, does not WELLS.
affect a devise in trust to the executor, with Oil or gas wells, see "Mines and Minerals," § 2. power of_sale.—Van Wickle v. Van Wickle" (N.
J. Ch.) 877.
Under devise of land for the use of devisee WIDOWS.
during her life, and providing that, if she leaves Dower, see "Dower."
no heirs, it shall be sold, and proceeds divided among others, she will take fee simple.-Reimer
v. Reimer (Pa.) 316. WILLS.
§ 3. Probate, establishment, and annulSee "Descent and Distribution"; "Executors
ment-Probate or establishment and Administrators."
of lost or destroyed wills. Construction and execution of trusts, see sible to show contents of lost will, and, if such
Declarations of deceased testator are admis“Trusts.” Equitable conversion, see "Conversion."
will be inconsistent with earlier will, to show Legacy and succession taxes, see "Taxation,” revocation of prior will.–Lane v. Hill (N. H.)
393. g 1. Testamentary capacity.
$ 4. - Evidence. Conversations between testatrix and attorney failure to find will not shown to have been in
There is no presumption of revocation from are admissible to show her testamentary capaci- failure to find will not shown to have been in ty, although such conversations pertained to her testator's possession.--Lane v. Hill (N. H.) 393. rights in estate in reference to which she aft- While due execution of will cannot be shown erwards employed the attorney.-Appeal of by declarations of testator containing mere conTurner (Conn.) 310.
clusion, his declaration that he made will writ
ten by certain person is admissible in corrobora- Evidence of understanding between testator tion of testimony of another to that effect.- and beneficiaries held inadmissible to explain alLane v. Hill (N. H.) 393.
leged latent ambiguity in description of propDeclarations of a testator are admissible on erty.-Shapleigh v. Shapleigh (N. H.) 107. the question whether he was contented or dis- A devise of land in New Jersey under a will contented at a particular time or under partic- of a nonresident must be determined by the laws ular circumstances.-In re Barney's Will (Vt.) of New Jersey.-Van Wickle v. Van Wickle (N. 75.
J. Ch.) 877. Counterfeit signatures of the witnesses to a $ 8. Designation of devisees and will are not admissible in evidence on a contest
legatees. of the will, nor is their use admissible in the "Heir,” in will
, construed to mean "legatee." cross-examination of such witnesses.-In re Bar- or "devisee."--Shapleigh v. Shapleigh (N. H.) ney's Will (Vt.) 75.
107. Where the contestants of a will claimed the
Will construed, and held, that “other legacies will to have been an unnatural one, and intro- mentioned,” which were preferred in the codicil, duced evidence of the impoverished condition of did not include one postponed in the will. some of the testator's heirs who were excluded Eames v. Trustees of Protestant Episcopal by the will from any share in his estate, and of Church in the Diocese of New Hampshire (N. the friendly relations between the testator and H.) 382. some of them, evidence of the unfriendly feeling
In construction of will, where there was amof the testator towards the husband of one of such heirs and the son of another is admissible biguity as to legatee whose children were to in behalf of the proponent.-In re Barney's Will take, held, in view of evidence, that name must (Vt.) 75.
control in determining legatee, and not profes
sional title.-Atterbury v. Strafford (N. J. Ch.) § 5. Hearing or trial.
160. In a will contest based on undue influence,
Board of Domestic Missions of Reformed where confidential relation between executor Church in America held legatee under bequest and testator is not admitted, and question is to "Domestic Missionary Society."-Van Nossubmitted to jury with charge that, if it exist-trand v. Board of Domestic Missions of Reed, burden of proof is on executor to show that formed Church in America (N. J. Ch.) 472. he acted fairly, there is no error in refusing instruction assuming such relationship to exist. A posthumous child of a testator held entitled, --Appeal of Turner (Conn.) 310.
under 3 Gen. St. p. 3760, $ 19, to the same share
as though his father had died intestate.- Van When court properly defines testamentary ca: Wickle v. Van Wickle (N. J. Ch.) 877. pacity, and charges that burden of proving it is on proponents, against whom verdict should Devise for use of testator's son for life, then be if there is doubt as to where preponder- to be divided among devisee's sons, held a devise ance of evidence lies, instruction that verdict in fee. -Stigers v. Dinsmore (Pa.) 550. must be for contestant if evidence shows that testator lacked testamentary capacity may be $ 9.
Survivorship, representation, refused.--Appeal of Turner (Conn.) 310.
Bequest payable in eight years, but over if Where court submits question of weakened legatee died childless, held to contemplate death mind to jury, and refers to evidence showing of legatee within eight years.-Andrews v. Sarit and evidence against it, and intimates its gent's Estate (Vt.) 341. own opinion, error is committed.--Appeal of Turner (Conn.) 310.
§ 10. Nature of estates and interests Though issue whether will was revoked would
created. have been withdrawn on motion before its sub
Where no time was fixed in a will for the dimission, there being no sufficient evidence that vision of the estate into shares, as provided it was revoked, motion made after submission therein, held, the estate, for the purposes of the and failure of jury to find a verdict thereon is will, must be treated as separated into shares too late.-Lane v. Hill (N. H.) 393.
from the death of the testator.-Frost v. Mc
Caulley (Del. Ch.) 779. $ 6. Review. Under Pub. St. c. 200, $ 11, providing that on land and distribution of proceeds, the title to
Under a provision in a will directing sale of appeal from probate
court, if any fact material the land descends to the heirs at law, and re
, to try such fact, whole question
should not be sub- mains in them until the sale is made.--In re mitted to jury, but only material questions of Journey's Estate (Del. Ch.) 795. fact bearing thereon.-Lane v. Hill (N. H.) 393. Under a bequest to testator's wife of all the Reason of appeal, assigned on appeal from of it while she remained single, and, at her
residue of his property, she to hold and dispose probate of will, held to be denial that instrument death or marriage, the property to be equally was in fact will, and sufficient.-Lane v. Hill divided between his two daughters, the widow (N. H.) 597.
took only a life estate in the realty.-Russell v. Issue of revocation of will, tendered by rea- | Werntz (Md.) 219. son of appeal, presents question of fact for
Life estate, with full right of enjoyment and jury.-Lane v. Hill (N. H.) 597.
power of disposition during life, held created, Where legal reason is assigned for appeal from with valid limitation over of undisposed properdecree of probate court approving and allowing ty.--Shapleigh v. Shapleigh (N. H.) 107. will, further reasons for correctness of reason assigned need not be alleged.-Lane v. Hill (N. fee-simple estate, and hence nephew's will pur
Will held not to convey to testator's nephew H.) 597.
porting to dispose of property was inoperative.Where whole question of validity of will is Miller v. Lamprey (N. H.) 528. brought to supreme court by the reason of appeal, disputed questions of fact may be deter
Bequest to school districts held to be divided mined by jury-Lane v. Hill (N. H.) 597.
among the districts as organized at death of
testator, according to number of children in $ 7. Construction-General rules.
each.-Westgate v. Town of Haverhill (N. H.) Devise in trust for beneficiary, payable when, 697. in trustee's opinion, he should be capable of In an action to construe a will, held, that teshandling fund, creates an absolute estate in ben- tator's granddaughter was entitled to take, uneficiary, which he may dispose of by will.-Chase der a codicil, that portion of the estate which v. Benedict (Conn.) 507; Appeal of Griggs, Id. testator had acquired from his daughter subse
quent to execution of the will.--Stratton V. Will construed, and held, that a certain excess Stratton (N. H.) 699.
of income of certain trust estates should be held The giving of a power of sale to two executors by the trustee as a part of the corpus of the esis not a provision in the will that the survivor tate, and not as income.-Equitable Guarantee should not exercise the power on the death of & Trust Co. v. Rogers (Del.
Ch.) 789. one of them, within the statute precluding a Where an annuity for the widow, to be derived conveyance by a surviving executor where there from property set apart for that purpose, is is such a provision.-Rutherford Land & Im- provided for by will, the trustees have only auprovement Co. v. Sanntrock (N. J. Ch.) 938. thority to set apart 'a sufficient amount to raise
A will construed, and beneficiaries held to such annuity; and hence any excess becomes a share the income equally for life, and, on the part of the residuary estate. - Equitable Guardeath of either, it was to go to the survivor antee & Trust Co. v. Rogers (Del. Ch.) 789. until death, when the principal of each was to be A devisee's right to enter and use the land exdistributed as directed by his will.-In re Kel-clusively held perfect against all the world, exly's Estate (Pa.) 289; Appeal of Fidelity, In- cept parties hired by devisor to cut and saw surance, Trust & Safe-Deposit Co., Id.
timber thereon; and, on their nonperformance, Wills construed, and right of estate of wife on the
title to the timber vested in her.-Lambden her death in remainder under husband's will v. West (Del. Ch.) 797. determined.-In re Pinkerton's Estate (Pa.) 424; Ignorance of a legacy held not to avoid the bar Appeal of Warren, Id.
of limitations as against a purchaser of land unWill construed and held not to show an unqual- der the will who did not know that the legacy ified gift of personalty to testator's wife. In was not paid.-Congregational Church of White re Geist's Estate (Pa.) 437; Appeal of Kaylor, River Village v. Benedict (N. J. Ch.) 878. Id.
Evidence of ignorance of a legacy held inOn petition for construction of will, held wife sufficient to preclude the presumption of payment took life estate only, with power of 'disposition, arising from the lapse of time.-Congregational and that limitations over were valid. --In re Til Church of White River Village v. Benedict (N. ton (R. I.) 223.
J. Ch.) 878.
That an executor ordered the doing of certain $ 11. -Vested or contingent estates things held not to show a deficiency of assets to and interests.
pay a legacy, where the expense of executing the Where an estate is separated into shares from order was not shown.-Congregational Church of the death of the testator, and one legatee was White River Village v. Benedict (N. J. Ch.) 878. to receive the income of her share semiannually for 10 years, such share is a vested legacy, paya
A presumption of a payment of a legacy arises ble immediately after the expiration of the 10 after the expiration of 20 years from the time years.-Frost v. McCaulley (Del. Ch.) 779.
of the accrual of a right to it.-Congregational
Church of White River Village v. Benedict (N. J. Will construed, and held, that the estate of Ch.) 878. certain beneficiaries therein named vested immediately on the death of the testator, and that
A testamentary disposition of a child's share gifts over were of no effect.-Reybold'v. Reybold of a testator's estate is not in contravention of a (Del. Ch.) 794.
provision that if the child sell, assign, or pledge
his share, it shall work a forfeiture thereof.Will construed, and held that a bequest to cer- Miller v. Worrall (N. J. Ch.) 890. tain children was to them as a class, and vested in the survivor, and hence, on his death unmar
A devise to a child does not vest title in him, ried, passed to his father, under Pub. St. c. 196, where a subsequent clause of the will gives the $81, 2.-Brewster v. Mack (N. H.) 811.
land to the executor, with power to sell, if deem
ed for the estate's benefit.---Rutherford Land & A will which bequeathed all of testator's estate Improvement Co. v. Sanntrock (N. J. Ch.) 938. to his children, share and share alike, subject to a life estate in testator's widow, held to vest the
A devise in trust to two executors survives to title in the children, and the share of a child dy- one of them on the death of the other.-Ruthering during life of widow goes to her executors ford Land & Improvement Co. v. Sanntrock on death of widow.-Miller v. Worrall (N. J. (N. J. Ch.) 938. Ch.) 890.
$ 16. Election. § 12. - Conditions and restrictions. A devisee who had taken under a will held not
A provision in relation to a devise held neither entitled to assert a claim inconsistent with the a condition precedent nor one subsequent an- will against a bona fide mortgage on another denexed to the gift of the fee.-Lambden v. West vise, the equity of redemption in which she had (Del. Ch.) 797.
acquired. - Farmington Sav. Bank v. Curran
(Conn.) 473. § 13. Estates in trust and powers.
Will construed, and legacy to testator's daugh- $ 17. — Legacies charged on property, ter held to be in trust.-In re Brownfield's Ēs
estate, or interest. tate (Pa.) 247; Appeal of Crossland, Id.
Pecuniary legacies held to bear interest, though
will gives executors three years in which to set§ 14. - Actions to construe wills. tle estate.-Warwick v. Ely (N. J. Ch.) 666.
Parol testimony is admissible to explain intent of testator as to beneficiary:-Van Nostrand v; essary parties to a suit to subject land to the
A testator's personal representatives are necBoard of Domestic Missions
Missions of Reformed Church in America (N. J. Ch.) 472.
payment of a legacy.-Congregational Church of
White River Village v. Benedict (N. J. Ch.) 878. County court cannot construe will, on appeal from decree of probate court admitting it to make personal representative a party to a suit
Death of executor held no excuse for failing to probate.-In re Segur's Will (Vt.) 342.
to enforce payment of a legacy from land.-Con§ 15. Rights and liabilities of devisees gregational Church of White River Village v. and legatees-Nature of title and
Benedict (N. J. Ch.) 878. rights in general.
A will bestowing land on a residuary legatee Will construed, and held, that the excess of in- subject to a prior legacy does not enable the come on stock of the estate set apart to pay the prior legatee to enforce payment of his legacy widow's annuity, being accumulation of the from the land, where there are personal assets residuary estate, was a part of the corpus of the applicable to the payment thereof.-Congregatrust fund, and not income.-Equitable Guar- tional Church of White River Village v. Bene.antee & Trust Co. v. Rogers (Del. Ch.) 789. dict (N. J. Ch.) 878.