Injunction against appropriation of waters of
a running stream before paying damages is
properly refused where the damage is nominal
and the appropriator is able to pay as soon as
the amount is ascertained, and when granting
writ would work great hardship.-New Haven
Water Co. v. Borough of Wallingford (Conn.)
235.

Where a municipal corporation appropriates
the waters of a running stream, then abandons
part of it, but afterwards reappropriates it,
merely buying property, during the abandon-
ment, along said stream, including a mill with
"the water privileges thereto," does not consti-
tute an adverse appropriation.-New Haven Wa-
ter Co. v. Borough of Wallingford (Conn.) 235.
In action between upper and lower riparian
proprietors, held, that the lower proprietors had
no right to control the gates at the foot of a pond
emptying into the stream in question by prescrip-
tion of contract.-Weare v. Chase (Me.) 900.
§ 4. Conveyances and contracts.

Right to maintain tide mill is appurtenant to
water way. Hence a purchaser of mill site who
does not acquire water way has no right to use
water.-Urch v. City of Portsmouth (N. H.)

112.

Where, by an agreement, each party was to
tap a main water pipe with a 34-inch service
pipe, the right of each is limited to the insertion
in the main pipe of a 4-inch service pipe, and
each is entitled to the same quantity of water.
-Van Horn v. Clark (N. J. Ch.) 643.

Nonexpert witnesses cannot give opinions as
to the testator's mental condition, unless they
have had sufficient knowledge and personal ob-
servation to form correct conclusion, or unless
they have testified to sufficient facts upon which
to base opinion.-Appeal of Turner (Conn.) 310.
One may make will if he understands the
nature of transaction, although mentally inca-
pable of attending to business generally.-Ap-
peal of Turner (Conn.) 310.

Qualified witness may state if, in his opin-
ion, testator's understanding was sufficient to
transact ordinary business.-Appeal of Turner
(Conn.) 310.

A legacy payable on the termination of a life
estate in the property out of which the fund for
the legacy is to be created becomes vested imme-
diately on the death of the testator.-In re Jour-
ney's Estate (Del. Ch.) 795.

Insane delusion in regard to object of testa-
tor's benefaction invalidates will when it en-
ters into it, though testator is capable of at-
tending to business.-In re Segur's Will (Vt.)
342.

§ 2. Requisites and validity.

Mere kindness of treatment or moderate and
reasonable solicitation will not amount to un-
due influence, when yielded to from sense of
duty and without restraint.-Appeal of Turner
(Conn.) 310.

and independence must be overcome, and dom-
To constitute undue influence, free agency

Where the right of each party to an agree-
ment is limited to the insertion of a 4-inch
pipe in the main water pipe, and one party
makes other taps, or permits a third party to
tap, without the consent of the other, he will be
enjoined from using such taps.-Van Horn v.
Clark (N. J. Ch.) 643.

§ 5. Public water supply.

Though control of public water supply, and
sole right to turn it on and cut it off, is in
borough council, it has no right, in absence of
regulation, to cut it off, by reason of consumer's
failure to comply with ordinances respecting
plumbing.-Johnson v. Borough of Belmar (N. J.
Ch.) 166.

General act relating to boroughs (P. L. 1897,
p. 285) transfers to borough council control over
waterworks previously existing. - Walling v.
Borough of Deckertown (N. J. Sup.) 864.

WELLS.

Clause in will that legacy to legatee predeceas-
ing testatrix shall not lapse, but go to heirs at
law of such legatee, held not revoked by codicil,
directing that legacy to such deceased legatee
shall go to his issue.-Bringhurst v. Orth (Del.
Ch.) 783.

far as latter expressly revokes, or is shown to
Will is revoked by subsequent will only so

be inconsistent with, the former.-Lane v. Hill
(N. H.) 393.

Destruction of a will does not revive a for-

mer one, in the absence of evidence that such
was testator's intention, especially where it
contains a clause of revocation.-Lane v. Hill
(N. H.) 393.

Mistake in description of legatee held not to
defeat bequest.-Van Nostrand v. Board of Do-
mestic Missions of Reformed Church in America
(N. J. Ch.) 472.

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
affect a devise in trust to the executor, with

WIDOWS.

Dower, see "Dower."

WILLS.

See "Descent and Distribution"; "Executors
and Administrators."

Construction and execution of trusts, see
"Trusts."

Equitable conversion, see "Conversion."
Legacy and succession taxes, see "Taxation,"
§ 8.

1. Testamentary capacity.

Conversations between testatrix and attorney
are admissible to show her testamentary capaci-
ty, although such conversations pertained to her
rights in estate in reference to which she aft-
erwards employed the attorney.-Appeal of
Turner (Conn.) 310.

J. Ch.) 877.

Under devise of land for the use of devisee
during her life, and providing that, if she leaves
no heirs, it shall be sold, and proceeds divided
among others, she will take fee simple.-Reimer
v. Reimer (Pa.) 316.

§ 3. Probate, establishment, and annul-
ment-Probate or establishment.
of lost or destroyed wills.
sible to show contents of lost will, and, if such
Declarations of deceased testator are admis-
will be inconsistent with earlier will, to show
revocation of prior will.-Lane v. Hill (N. H.)

393.

Counterfeit signatures of the witnesses to a
will are not admissible in evidence on a contest
of the will, nor is their use admissible in the
cross-examination of such witnesses.-In re Bar-
ney's Will (Vt.) 75.

Where the contestants of a will claimed the
will to have been an unnatural one, and intro-
duced evidence of the impoverished condition of
some of the testator's heirs who were excluded
by the will from any share in his estate, and of
the friendly relations between the testator and
some of them, evidence of the unfriendly feeling
of the testator towards the husband of one of
such heirs and the son of another is admissible
in behalf of the proponent.-In re Barney's Will
(Vt.) 75.

$ 5.

Hearing or trial.

In a will contest based on undue influence,
where confidential relation between executor
and testator is not admitted, and question is
submitted to jury with charge that, if it exist-
ed, burden of proof is on executor to show that
he acted fairly, there is no error in refusing in-
struction assuming such relationship to exist.
--Appeal of Turner (Conn.) 310.

When court properly defines testamentary ca-
pacity, and charges that burden of proving it
is on proponents, against whom verdict should
be if there is doubt as to where preponder-
ance of evidence lies, instruction that verdict
must be for contestant if evidence shows that

testator lacked testamentary capacity may be
refused.-Appeal of Turner (Conn.) 310.

Where court submits question of weakened
mind to jury, and refers to evidence showing
it and evidence against it, and intimates its
own opinion, error is committed.-Appeal of
Turner (Conn.) 310.

Though issue whether will was revoked would
have been withdrawn on motion before its sub-
mission, there being no sufficient evidence that
it was revoked, motion made after submission
and failure of jury to find a verdict thereon is
too late.-Lane v. Hill (N. H.) 393.

§ 6. Review.

Under Pub. St. c. 200, § 11. providing that on
appeal from probate court, if any fact material
to cause be disputed, court may direct issue to
try such fact, whole question should not be sub-
mitted to jury, but only material questions of
fact bearing thereon.-Lane v. Hill (N. H.) 393.
Reason of appeal, assigned on appeal from
probate of will, held to be denial that instrument
was in fact will, and sufficient.-Lane v. Hill
(N. H.) 597.

Issue of revocation of will, tendered by rea-
son of appeal, presents_ question of fact for
jury.-Lane v. Hill (N. H.) 597.

Where legal reason is assigned for appeal from
decree of probate court approving and allowing
will, further reasons for correctness of reason
assigned need not be alleged.-Lane v. Hill (N.
H.) 597.

Where whole question of validity of will is
brought to supreme court by the reason of ap-
peal, disputed questions of fact may be deter-
mined by jury.-Lane v. Hill (N. H.) 597.
§ 7. Construction-General rules.

Devise in trust for beneficiary, payable when,
in trustee's opinion, he should be capable of
handling fund, creates an absolute estate in ben-
eficiary, which he may dispose of by will.-Chase
v. Benedict (Conn.) 507; Appeal of Griggs, Id.

Survivorship,

representation,

and substitution.
Bequest payable in eight years, but over if
legatee died childless, held to contemplate death
of legatee within eight years.-Andrews v. Sar-
gent's Estate (Vt.) 341.

§ 10. Nature of estates and interests
created.

Where no time was fixed in a will for the di-
vision of the estate into shares, as provided
therein, held, the estate, for the purposes of the
will, must be treated as separated into shares
from the death of the testator.-Frost v. Mc-
Caulley (Del. Ch.) 779.

land and distribution of proceeds, the title to
Under a provision in a will directing sale of
the land descends to the heirs at law, and re-
mains in them until the sale is made.-In re
Journey's Estate (Del. Ch.) 795.

Under a bequest to testator's wife of all the
of it while she remained single, and, at her
residue of his property, she to hold and dispose
death or marriage, the property to be equally
divided between his two daughters, the widow
took only a life estate in the realty.-Russell v.
Werntz (Md.) 219.

Life estate, with full right of enjoyment and
power of disposition during life, held created,
with valid limitation over of undisposed proper-
ty.--Shapleigh v. Shapleigh (N. H.) 107.

fee-simple estate, and hence nephew's will pur-
Will held not to convey to testator's nephew
porting to dispose of property was inoperative.-
Miller v. Lamprey (N. H.) 528.

among the districts as organized at death of
Bequest to school districts held to be divided
testator. according to number of children in
each.-Westgate v. Town of Haverhill (N. H.)

697.

In an action to construe a will, held, that tes-
tator's granddaughter was entitled to take, un-
der a codicil, that portion of the estate which
testator had acquired from his daughter subse-

quent to execution of the will.-Stratton v.
Stratton (N. H.) 699.

The giving of a power of sale to two executors
is not a provision in the will that the survivor
should not exercise the power on the death of
one of them, within the statute precluding a
conveyance by a surviving executor where there
is such a provision.-Rutherford Land & Im-
provement Co. v. Sanntrock (N. J. Ch.) 938.

A will construed, and beneficiaries held to
share the income equally for life, and, on the
death of either, it was to go to the survivor
until death, when the principal of each was to be
distributed as directed by his will.-In re Kel-
ly's Estate (Pa.) 289; Appeal of Fidelity, In-
surance, Trust & Safe-Deposit Co., Id.

Wills construed, and right of estate of wife on
her death in remainder under husband's will
determined.-In re Pinkerton's Estate (Pa.) 424;
Appeal of Warren, Id.

Will construed and held not to show an unqual-
ified gift of personalty to testator's wife.-In
re Geist's Estate (Pa.) 437; Appeal of Kaylor,

Id.

On petition for construction of will, held wife
took life estate only, with power of disposition,
and that limitations over were valid.-In re Til
ton (R. I.) 223.

§ 11.

Vested or contingent estates
and interests.
Where an estate is separated into shares from
the death of the testator, and one legatee was
to receive the income of her share semiannually
for 10 years, such share is a vested legacy, paya-
ble immediately after the expiration of the 10
years.-Frost v. McCaulley (Del. Ch.) 779.

Will construed, and held, that the estate of
certain beneficiaries therein named vested imme-
diately on the death of the testator, and that
gifts over were of no effect.-Reybold v. Reybold
(Del. Ch.) 794.

Will construed, and held that a bequest to cer-
tain children was to them as a class, and vested
in the survivor, and hence, on his death unmar-
ried, passed to his father, under Pub. St. c. 196,
§§ 1, 2.-Brewster v. Mack (N. H.) 811.

A will which bequeathed all of testator's estate
to his children, share and share alike, subject to
a life estate in testator's widow, held to vest the
title in the children, and the share of a child dy-
ing during life of widow goes to her executors
on death of widow.-Miller v. Worrall (N. J.
Ch.) 890.

$12. Conditions and restrictions.

A provision in relation to a devise held neither
a condition precedent nor one subsequent an-
nexed to the gift of the fee.-Lambden v. West
(Del. Ch.) 797.

§13.- Estates in trust and powers.
Will construed, and legacy to testator's daugh-
ter held to be in trust.-In re Brownfield's Es-
tate (Pa.) 247; Appeal of Crossland, Id.
$14.- Actions to construe wills.

Parol testimony is admissible to explain intent
of testator as to beneficiary.-Van Nostrand v.
Board of Domestic Missions of Reformed
Church in America (N. J. Ch.) 472.

County court cannot construe will, on appeal
from decree of probate court admitting it to
probate. In re Segur's Will (Vt.) 342.
§15. Rights and liabilities of devisees
and legatees-Nature of title and
rights in general.

Will construed, and held, that the excess of in-
come on stock of the estate set apart to pay the
widow's annuity, being accumulation of the
residuary estate, was a part of the corpus of the
trust fund, and not income.-Equitable Guar-
antee & Trust Co. v. Rogers (Del. Ch.) 789.

Will construed, and held, that a certain excess
of income of certain trust estates should be held
by the trustee as a part of the corpus of the es-
tate, and not as income.-Equitable Guarantee
& Trust Co. v. Rogers (Del. Ch.) 789.

Where an annuity for the widow, to be derived
from property set apart for that purpose, is
provided for by will, the trustees have only au-
thority to set apart a sufficient amount to raise
such annuity; and hence any excess becomes a
part of the residuary estate.-Equitable Guar-
antee & Trust Co. v. Rogers (Del. Ch.) 789.

A devisee's right to enter and use the land ex-
clusively held perfect against all the world, ex-
cept parties hired by devisor to cut and saw
timber thereon; and, on their nonperformance,
the title to the timber_vested in her.-Lambden
v. West (Del. Ch.) 797.

Ignorance of a legacy held not to avoid the bar
of limitations as against a purchaser of land un-
der the will who did not know that the legacy
was not paid.-Congregational Church of White
River Village v. Benedict (N. J. Ch.) 878.

Evidence of ignorance of a legacy held in-
sufficient to preclude the presumption of payment
arising from the lapse of time.-Congregational
Church of White River Village v. Benedict (N.
J. Ch.) 878.

That an executor ordered the doing of certain
things held not to show a deficiency of assets to
pay a legacy, where the expense of executing the
order was not shown.-Congregational Church of
White River Village v. Benedict (N. J. Ch.) 878.
after the expiration of 20 years from the time
A presumption of a payment of a legacy arises
of the accrual of a right to it.-Congregational
Church of White River Village v. Benedict (N. J.
Ch.) 878.

A testamentary disposition of a child's share
of a testator's estate is not in contravention of a
provision that if the child sell, assign, or pledge
his share, it shall work a forfeiture thereof.-
Miller v. Worrall (N. J. Ch.) 890.

where a subsequent clause of the will gives the
A devise to a child does not vest title in him.
land to the executor, with power to sell, if deem-

ed for the estate's benefit.-Rutherford Land &
Improvement Co. v. Sanntrock (N. J. Ch.) 938.

A devise in trust to two executors survives to

one of them on the death of the other. Ruther-
ford Land & Improvement Co. v. Sanntrock
(N. J. Ch.) 938.

§ 17.

Legacies charged on property,
estate, or interest.
Pecuniary legacies held to bear interest, though
will gives executors three years in which to set-
tle estate.-Warwick v. Ely (N. J. Ch.) 666.

A testator's personal representatives are nec-
essary parties to a suit to subject land to the
payment of a legacy.-Congregational Church of
White River Village v. Benedict (N. J. Ch.) 878.

make personal representative a party to a suit
Death of executor held no excuse for failing to
to enforce payment of a legacy from land.-Con-
gregational Church of White River Village v.
Benedict (N. J. Ch.) 878.

A will bestowing land on a residuary legatee
subject to a prior legacy does not enable the
prior legatee to enforce payment of his legacy
from the land, where there are personal assets
applicable to the payment thereof.-Congrega-
tional Church of White River Village v. Bene-
dict (N. J. Ch.) 878.