nature of pleadings with regard to this supplemental application", any al-
legation of the defendant's affidavit, not denied by his former wife, must be
taken to be true for the purposes of the motion. Id.
Replevin― Right of surety to come in and defend. A surety, upon an
undertaking given by the defendant in an action of replevin to regain pos-
session of the chattels replevied. will be permitted to come in and defend
the action to protect itself from liability upon the undertaking. Boessneck
v. Bab, 379.
UNDUE INFLUENCE.
See Will.
1. Place of trial - Change of, in equitable action to restrain a nuisance.-
An equitable action brought to enjoin the continuance of a nuisance, con-
sisting in an addition to the height of an old dam in Franklin county, which
addition raises the water in Tupper's lake and overflows lands of the plain-
tiff bordering on said lake and situated partly in Franklin and partly in St.
Lawrence counties, is not an action "affecting an estate, right, title, lien
or other interest" in the said lands, and, therefore, will not, at the instance
of the defendants, be changed from Kings county, the plaintiff's residence,
to St. Lawrence as the proper county under section 982 of the Code of Civil
Procedure. Litchfield v. International Paper Company, 8.
2. Common law action distinguished — Code Civ. Pro., § 968, subd. 2, 982.—
The action "for a nuisance" mentioned in said section is the common law
action for a nuisance" enumerated in subdivision 2 of section 968 of said
Code and is triable by a jury; and said section 982 has no application to an
equitable action in which a jury trial is not a matter of right. If such an
equitable action as the present could be deemed one which affects the title or
interest in real property, within the meaning of said section 982, such real
property is the dam and the land to which it is appurtenant, which are in
Franklin county. Id.
3. Place of trial Occupation and residence, by street and number, of
material witnesses must be shown. Upon an application to change the place
of trial of an action, the moving papers should, where alleged material and
necessary witnesses are residents of a city, show the street and number of
their residences and state their occupations. Dean v. Cunningham, 31.
4. Place of trial-Action for breach of contract for privileges at a fair.-
An action against an association, for damages on a breach of a contract for
huckster privileges at a fair held by it, should be brought in the county of
the association, where the contract was made and where all the transactions
took place. Sinnit v. Cambridge Valley Agricultural Society & Stock Breeders'
Association, 586.
5. Affidavit opposing change.—An affidavit is insufficient to prevent a
change of the place of trial where it fails to show that the plaintiff has
stated to his counsel the facts which he expects to prove by his witnesses,
and that such witnesses are necessary and material as he is advised by his
counsel, after such statement made to the latter, and verily believes.
Defense of res adjudicata cannot be predicated on a verdict.- A mere ver-
dict in a prior action between the same parties, involving the same trans-
actions, is not sufficient to support the defense of res adjudicata. De Forest
v. Andrews, 145.
Civil Service - Chap. 184, Laws of 1898, requires the transfer of a veteran,
whose position is abolished, to another branch of the service. Where a
veteran holds a competitive position as assistant secretary in the office of
the fire commissioner of a city of the first class, the commissioner has no
power, upon abolishing the position, to discharge him summarily but is re-
quired by chapter 184 of the Laws of 1898 to transfer him "to any branch of
the said service for duty in such position as he may be fitted to fill, receiving
the same compensation therefor." People ex rel. Shields v. Scannell, 734.
See Civil Service; Pensions.
Assessments · Equitable action to defeat· When maintainable — A turn-
pike deemed “a street.”— Under a village charter (Laws of 1874, chap. 325)
providing that no change shall be made in the grade "of any street except
on the written application of the owners of a majority in feet of property on
the line, a street which for sixty-eight years has been used as a turnpike
or street and which has been thereafter used in a similar manner for twenty-
five years by an incorporated village, is to be deemed a "street" sufficiently
to entitle an abutting owner thereon to maintain an equitable action to pro-
cure an assessment to be declared void, it appearing that the village changed
the grade without any written application from any abutting owner and that
proof aliunde is required to show that the assessment was laid for work done
in changing the grade. Niver v. Village of Bath-on-the-Hudson, 605.
WAREHOUSEMEN.
See Bailment.
Sales A salesman cannot warrant unless it is the custom.- In the ab-
sence of proof that an express warranty usually attends a sale of blending
oils, a mere salesman has no power to give such a warrant upon such a sale
and bind his principal. Pennsylvania & Delaware Oil Co. v. Spitelnik, 557.
See Sales.
1. Religious corporations Devise within sixty days of death of devisor.-
The objection that a will, devising property to a church, was executed within
sixty days of the death of the testatrix is not available where it appears that
the church was incorporated under chapter 60 of the Laws of 1813, as its
right to take by will is not affected by section 6 of chapter 319 of the Laws
of 1848, nor by the General Corporation Law, or by the Religious Corporation
Law, or by the Membership Corporations Law. Matter of Foley, 77.
2. Evidence aliunde to show the true object of a devise.-A devise to "St.
Mary Roman Catholic Church of Cooperstown, N. Y." may be shown by parol,
or other competent evidence to have been intended for the "Church of the
Lady of the Lake, Cooperstown, N. Y.," such being its true name. Id.
3. Legacy Vests under present words of gift, although possession is post-
poned until a conversion is made. The will of a testator gave his widow,
during life or until remarriage, his real and his residuary personal estate,
and if this income proved insufficient to support her as comfortably as she
had been provided for during his lifetime, authority was given his executors
to use the principal to make up the deficiency. Upon her death or remar
riage the executors were directed by a codicil to sell and convey the realty,
convert the personalty into money, and out of the proceeds pay a son $1,500,
and to Alphrona Town, $800,"which said amounts I do hereby give and
bequeath unto them to be paid only as aforesaid. After the payments have
been made, the balance remaining in the hands of my executors shall be di-
vided between my two sons". Alphrona Town died during the lifetime of the
widow. Held, that notwithstanding the testator's direction for a conversion
at a future time and payment from such proceeds of the legacy to Alphrona
Town, her legacy did not lapse by her death before the widow but vested
WILL- Continued.
indefeasibly under the present words of gift, "I do hereby give and be-
queath", although possession and enjoyment were postponed. Matter of
Elliott, 258.
4. Remainder - Invalid execution of a power to appoint the amount of a
vested remainder.- Where a testator gives his widow a life estate in all his
property and to his four children vested remainders in such proportions as
the widow may appoint by will, she cannot defeat the remainder of a child,
who died before her and devised his share to his widow, by creating in her
own will a trust, as to the child's share, which has the effect of diverting
from his widow and devisee all the principal and a part of the income.
Townsend v. Townsend, 268.
5. Remainder - Under a remainder "to the child or children of my said
son", his grandchild cannot take as against living children.- Under the
direction of a testatrix, that a certain share of her estate should be held
in trust by her executors for her son William for life and that after his
death the remainder should be paid "to the child or children of my said
son in equal proportions", his grandchild cannot take, in the absence of
anything in the will tending to enlarge the ordinary meaning of the word
"children", and it appearing that William had children when the will was
made, of whom two were still living. Matter of Sparks, 350.
6. Distribution - Code Civil Procedure, § 2732, subd. 12, as amended in
1898 Issue of deceased uncles and aunts take by representation, and should
be cited to the probate of a will of real and personal estate. Upon the pro-
bate of a will of real and personal estate it appeared that the testator left
no widow, parents, brothers or sisters, but left nephews, nieces, the issue
of deceased nephews and nieces, and the issue of deceased uncles and aunts.
The nephews and nieces and the issue of deceased nephews and nieces were
cited. Held that, under subdivision 12 of section 2732 of the Code of Civil
Procedure, as amended by chapter 319 of the Laws of 1898, declaring that
Representation shall be admitted among collaterals in the same manner as
allowed by law in reference to real estate", the issue of deceased uncles and
aunts took by representation the shares which their ancestors would have
taken if living and were therefore entitled to be cited. Matter of Healy, 352.
7. Execution · - Failure of testatrix to declare the instrument to be her
will. Where the only evidence that a decedent declared a paper, offered for
probate, to be her will is contained in a recital to that effect in the attesta-
tion clause, and the only subscribing witness produced testifies that the
decedent did not declare to her that the paper was her will and merely
requested the testifying witness to sign the instrument" as a witness and
this testimony is confirmed by that of the husband of the testatrix who was
present, probate will be refused, as it must appear unequivocally that the
testatrix communicated to the subscribing witnesses the testamentary char
acter of the instrument. Matter of Delprat, 355.
8. Not avoided by a second will executed just before death - Burden of
proof as to testamentary capacity.- Where a prior will executed with delib-
eration and while the testatrix was in good health is sought to be over-
thrown by a later will, containing different provisions, executed twelve days
before her death and when she had become enfeebled by illness, the court will
inquire most minutely into the circumstances attending the execution of the
later will, will require its proponent to show that the testatrix had tes-
tamentary capacity at the time of its execution, and, failing such proof, will
reject the later will. Matter of Barbineau, 417.
9. Devise to a corporation to be formed in the future.-The will of a tes-
tator, after giving his residuary estate to his brother-in-law for life, gave the
remainder over to a corporation which he requested his executors to cause
to be formed after his death and within a period not exceeding the lives of
two persons whom he named. Such a corporation was formed by the ex-
ecutors after the death of the testator and that of the brother-in-law and
within the period prescribed. Held, that the testator had a right to devise
his property to a corporation to be formed after his death. Jessup v. Pringle
Memorial Home, 427.
10. Improper suspension of the power of alienation not caused by a prece-
dent life estate. That such a devise created a future estate purely contingent
in its character and one which did not require a precedent estate to sup-
port it. That, in this view, the life estate had no effect upon the contingency
attending the creation of the corporation and the vesting of the estate in it,
and that, consequently, the power of alienation was not suspended for more
than two lives in being at the death of the testator. Id.
11. Testamentary capacity.—Where witnesses of good character testify to
the testamentary capacity of a testator at the time when he executed his will
on the ninth day of May, the fact, that he became insane on or about the
twenty-sixth day of the following July and so remained until his death ten
years later, does not afford proof that he was incompetent on the ninth day
of May. Matter of Lawrence, 473.
12. Surrogate's Court Excessive bequest to religious society not objected
to until the judicial settlement of the executor - Estoppel. Although all
the parties entitled were cited to the probate of a will by which, in contra-
vention of chapter 360 of the Laws of 1860, a testatrix, who left a husband her
surviving, bequeathed to a religious society more than the one-half part of
her estate, after payment of her debts, and none of the parties cited took
the objection at probate, it is the duty of the surrogate, where the violation
clearly appears and is pointed out on the judicial settlement of the accounts
of the executor, to enforce the statute, there being no estoppel nor any ne-
cessity for an action to construe the will in this regard. Matter of Counrod,
475.
13. The invalid excess passes as in intestacy.- Where the residuary clause
of a will does not and was not intended to embrace the bequest to the re-
ligious society, the one-half thereof, which is condemned by the statute, is
to be regarded as assets not disposed of and, in a proper case, will pass to
the husband although he is given by the will the use of all the property
during his life. Id.
14. Mutual. An agreement by a husband and wife to make mutual wills
cannot be enforced unless it is clearly established by proof. Herrick v.
Snyder, 462.
15. Subscription by attesting witness. It is not necessary that an attest-
ing witness to a will should subscribe her name in the presence of the tes-
tatrix and it is sufficient that she subscribed it at her own house within half
an hour of the time of the execution of the will. Id.
16. Construction of children of "second marriage."- A testatrix bequeathed
the residue of her property equally to the children of her "first and second
marriage". When a widow with children she had married a widower with
children, and there was no issue of the last marriage. Held, that by the
children of her "second marriage" she intended to benefit her stepchildren.
17. Devisc― Gift to a child of a life income only — Power to devise, by
implication, denied.— The will of a testator gave his residuary estate to
his executors as trustees to pay the income to the widow and in the event of
her death or remarriage, living his seven children, to pay a seventh of the
income to each during life; and it further provided that “ upon the death of
each of my said children, I give, devise and bequeath one-seventh part of all
my estate to his or her heirs, executors, administrators and assigns forever."
All the children survived their mother and thereafter a daughter, who died,
attempted to devise her share. Held, that the words "executors, adminis-
trators and assigns" referred to the heirs of the children and not to the
children themselves. That the daughter did not take, by implication, a power
to dispose of her share but merely had a life income. Matter of Southack,
613.
18. Undue influence - Physician and patient. In 1883 a testator, having
two sisters, devised his whole estate, except $1,000, to the sister who lived
with him then and until his death. On June 3, 1898, and while in his last
illness, he, by a new will, devised his real estate to the wife of his attending
physician. Two days later, and while suffering greatly from heart disease,
he made a third will by which he devised nearly his whole estate to her.
He died two days subsequently, aged eighty years, and was unmarried. Held,
that the presumption of undue influence which exists between physician and
patient had not been overcome, that no sufficient explanation had been given
for the exclusion of the sisters to the advantage of a stranger, and that the
probate allowed without contest must be revoked. Matter of Keefe, 618.
19. Legacy. There is no priority among general legacies which are mere
bounties. Where a testatrix, who, by a detailed disposition of her residuary
estate, indicated her belief that her estate would be sufficient for the dis-
charge of all legacies given, makes five bequests of $2,000 each to five separate
sets of grandchildren and this latter provision is preceded by a direction to
her executors to pay the "following bequests in the order named in my
will", no one set of legatees has preference over the other, as the rule ap-
plies that there is no priority among a group of general legacies, which are
mere bounties, unless the testatrix's intention to create a preference is most
strongly and unequivocally expressed. Matter of Williams, 716.
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20. Remainder — Vesting — Classes of distributees to be determined as of
the testator's death - Provision that a deceased member of a class shall take
its parent's share, does not make the share contingent.- Where a testator
explicitly directs that portions of his estate, primarily devoted to other pur-
poses, shall, upon the failure thereof, fall into the residuum, his omission to
provide for any principle of survivorship in certain trusts where the re-
mainder was directed to be paid upon the death of the beneficiaries, in one
case, to the children of a beneficiary, and, in the other, to be divided among
the grandnephews and nieces of the testator, indicates an intention upon
his part that the class of distributees was to be determined at the time of
his own death, and not at the time when the trusts should be terminated,
and therefore the share of a beneficiary's child, who died after the testator
and during the existence of the trusts, is devisable by the child as a vested
remainder. A provision that a deceased member of a class shall take its
parent's share does not necessarily make the share of the parent contingent
and have the effect of continuing the existence of the class until the ter-
mination of the trusts, as the true construction of such a provision is to give
a parent, who survives the testator and dies without issue, a present vested
interest which remains in him until death and which is, therefore, devisable
by him. Dougherty v. Thompson, 738.
See Attorneys; Contract; Legatees, Heirs, etc.
Exemption of vice-consul of the Republic of Colombia.- Under the treaties
existing between the United States of America and the Republic of Colombia,
a vice-consul of the latter country cannot be compelled by subpoena to become
a witness in proceedings supplementary to execution. Baiz v. Malo, 685.
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