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4. TRUST-BEQUEST FOR MASSES, WHEN CREATES.-A
bequest of a sum specified to a Roman Catholic bishop of the dio-
cese of G., to be used and applied for masses for the repose of the
soul of the testator and the souls of other deceased persons desig-
nated in the will, is not a bequest to the bishop to have and enjoy
as he may deem best, but an attempt to create a trust. (McHugh v.
McCole, 106.)

5. TRUST FOR MASSES.-A bequest of a sum of money to
the Roman Catholic bishop of the diocese of G., to be used by
him for masses for the repose of the souls of designated persons
in the several sums in the will specified, is void for want of bene-
ficiaries who may come into equity and enforce its performance.
(McHugh v. McCole, 106.)

6. TRUSTS-WHEN TESTAMENTARY AND THEREFORE
REVOCABLE.--A deed conveying property to be held in trust to
pay the grantor during life the income and to sell and invest as he
may direct, and after his death, to convey to such of his sons as may
be living and to the issue of such as have died, is revocable by the
grantor, because it is testamentary in character. Especially is this
true when the grantor is a woman, and her attenton is not called
to the fact that the deed contained no clause of revocation, nor to
the desirability of inserting such a clause. (Chestnut St. Nat. Bank
v. Fidelity Ins. etc. Co., 860.)

7. SPENDTHRIFT TRUSTS.-A provision in a deed of trust in
favor of the donor's children that the share of one of them shall be
held in trust for his use and benefit, and that neither the income
nor the principal shall under any circumstances be subject to antici-
pation or assignment by him, or to seizure or attachment under any
judgment, decree, or other lawful process at the suit of any creditor
he has or may have. is valid, and no part may be taken under a writ
in favor of his creditors. (Chestnut St. Nat. Bank v. Fidelity Ins.
etc. Co., 860.)

8.

EVIDENCE-INGRAFTING TRUST ON WILL BY PA-
ROL.-The very purpose of requiring wills to be in writing would
be wholly defeated if courts of equity were allowed to ingraft upon
their provisions such parol trusts as seemed probably to have existed
in the mind of the testator. (Moran v. Moran, 443.)

9. EVIDENCE-INGRAFTING TRUST ON WILL BY PA-
ROL.-Under a statutory provision which makes a writing essential
to the validity of a will, parol evidence is not admissible to show
that a testator, in making an absolute devise, intended that the de-
visee should hold the property in trust for others, although the
devisee, by a pleading in probate proceedings, acknowledges the
trust in writing and defines its extent. (Moran v. Moran, 443.)

10. CONVEYANCES-WHEN TWO MAY BE REGARDED AS
ONE.-If a trust deed is executed, and afterward a further deed is
made modifying and changing some of the terms of the former, the
two should thereafter be regarded as one instrument, and a clause
of the donor's will confirming the first should not be construed as
revoking the second, but as confirming the first as modified by the
second. (Chestnut St. Nat. Bank v. Fidelity Ins. etc. Co., 860.)

11. TRUSTS-CONVERSION BY TRUSTEE-LIABILITY.—In
order to subject a private estate of a defaulting trustee to the pay-
ment of a trust fund, such as the proceeds of stock sold on com-
mission, which have been by him wrongfully converted, it is not
necessary to trace such fund into any particular property, but it
must be clearly shown that it went into, and was used for the
benefit of such estate. (Hopkins v. Burr, 238.)

12. TRUSTEE'S SALE "HIGHEST AND BEST" BIDDER-
WHO IS. A requirement in a trust deed that, if a sale is made by

the trustee, he must sell for the "highest and best" price, does not
mean that no sale is legal unless there are three or more bids.
Hence, if the deed expressly provides that the owner of a note
secured thereby may become the purchaser at such a sale, and he
is the only one who bids, his offer is the "highest and best" bid
within the meaning of such requirement. (Lathrop v. Tracy, 229.)

13. TRUSTEE'S SALE-COMPETITION.-If a full and fair op-
portunity is given to bidders, at a trustee's sale, to participate there-
in, and there is no collusion, the requirement as to competition is
fulfilled. (Lathrop v. Tracy, 229.)

14. TRUSTEE'S SALE-TIME-FRACTIONS OF AN HOUR.-
The law does not recognize fractions of an hour. Hence, if a
trustee gives notice that he will make a sale at ten o'clock, he
is not required to sell precisely at that hour, but may sell at any
time during the hour, and a sale at half past ten o'clock is not
a departure from the notice. (Lathrop v. Tracy, 229.)

15. TRUSTEE'S SALE-INADEQUACY OF PRICE.-A_trustee's
sale, properly conducted, cannot be set aside on the ground of mere
inadequacy of price. (Lathrop v. Tracy, 229.)

16. TRUSTEE'S SALE-INADEQUACY OF PRICE.-A fore-
closure sale, made by a trustee, will not be set aside merely because
it results in loss to the owner of an equity in the property. It is
unfortunate for him that, on account of the stringency of the times,
he should lose his equity because the property does not bring its
full value, but this is no reason why a court should give him a
further opportunity to protect himself, when he does not even claim
that another sale would enable him to do so. (Lathrop v. Tracy,
229.)

1.

See Charities; Contracts, 18; Liens, 1.

ULTRA VIRES.

See Corporations, 3-5, 8.

USURY.

USURY-REMEDY OF ONE WHO HAS SUBMITTED TO.-
A borrower who has paid more than legal interest is not restricted
to the remedy given by statute, but may maintain an action of as-
sumpsit to recover the excess of interest paid on paying, or offering
to pay, the money loaned with legal interest. (Baum v. Thoms,
368.)

2. USURY-PAYMENT OF IS NOT DEEMED VOLUNTARY.—
A payment of usurious interest is regarded as made under the con-
straint of a formal, though illegal, contract, obtained by taking ad-
vantage of the necessities of the borrower, and is, therefore, ex-
cepted from the ordinary rule that one voluntarily paying money on
an illegal scheme cannot maintain an action to recover such pay-
ment. (Baum v. Thoms, 368.)

VARIANCE.

See Mayhem, 4.

VENDOR AND PURCHASER.

1. VENDOR AND PURCHASER-ASSUMPTION OF A DEBT
DUE A THIRD PERSON.-If a grantee in a conveyance to him as-
sumes and agrees to pay the debt of a third person as part of
the consideration for his purchase, he thereby becomes liable to
such third person although his grantor is not liable for the debt
and no consideration passes to the grantee from either of the other
parties. The liability rests solely on the promise. (Enos v. Sanger.

2. VENDOR AND PURCHASER-WHO IS NOT A BONA
FIDE PURCHASER-INADEQUATE CONSIDERATION.-If a
wife is conversant with the terms of an oral agreement, whereby
her husband attempts to obtain land for an inadequate considera-
tion, a conveyance of the land to her will be deemed an act in fur-
therance of such attempt, and she cannot, therefore, be regarded
as an innocent purchaser for value. (Williams v. Hamilton, 475.)
See Assignment, 2.

WAIVER.

See Insurance, 7-11, 52.

WAREHOUSEMEN.

1. A WAREHOUSEMAN is one who carries on the business of
receiving and keeping goods in storage for compensation. Hence
one cannot be a warehouseman of his own goods. (Tradesmen's
Nat. Bank v. Kent Mfg. Co., 876.)

2. WAREHOUSEMAN-WHO IS NOT.-Though one professes
to be a warehouseman and issues warehouse receipts, yet, if he is in
fact the clerk of another, by whom the rent of the warehouse is paid,
and the warehouse receipts are issued to his employers, who pay no
storage, and are the only persons having property in such warehouse,
he is not a warehouseman, and receipts issued by him on the prop-
erty of his employers have not the legal attributes of warehouse
receipts. (Tradesmen's Nat. Bank v. Kent Mfg. Co., 876.)

3. WAREHOUSE RECEIPTS-WANT OF NOTICE OF CHAR-
ACTER OF.-If a person professing to issue warehouse receipts is
not a warehouseman in fact, but merely assumes to be such ware-
houseman for the purpose of issuing warehouse receipts for his em-
ployers on their own property in his charge, want of notice of these
facts will not protect a person dealing in such receipts by taking an
assignment not accompanied by an actual delivery of the property.
(Tradesmen's Nat. Bank v. Kent Mfg. Co., 876.)

WATERS.

-

1. WATERS AND WATER COURSES PRESCRIPTIVE
RIGHTS.-The artificial state or condition of flowing water founded
upon prescription becomes a substitute for the natural condition pre-
viously existing; and from it arises a right on the part of those in-
terested to have the new condition maintained. (Smith v. Youmans,
80)

2. RIPARIAN RIGHTS-RIGHT TO ABANDON EASEMENT.-
An owner may abandon his water rights and easement to maintain
a lake at an artificial level, so as to escape all liability at law, for
consequential damages to riparian owners around the lake, unless he
is bound by law or agreement to maintain the higher level of the
waters of the lake. (Smith v. Youmans, 30.)

3. RIPARIAN RIGHTS-DAM RAISING WATER IN LAKE,
LOSS OF RIGHT TO REMOVE.-The owners on the shore of a lake
kept above the natural level by means of a dam until the owner
thereof has acquired a prescriptive right to maintain it, and until
the lands of such owners have become valuable as summer resorts
by reason thereof, while they have made valuable improvements re-
lying on the continued maintenance of the dam, have an easement
on their part, and may prevent the owner of the dam from lowering
the level of the lake to their injury. (Smith v. Youmans, 30.)

4. RIPARIAN PROPRIETORS-RIGHT
ΤΟ CONSTRUCT
WHARVES AND PIERS.-Owners of land in a city between a street

and the shore of a lake have the right to construct in front of their respective lots, in shoal water, proper wharves, piers, and booms in aid of navigation, without obstructing it, far enough to reach water navigable for such boats as are in use or appropriate to the lake. (Madison v. Mayers, 127.)

See Landlord and Tenant; Municipal Corporations, 24, 25.

WILLS.

1. WILLS-ATTESTING WITNESS.-THE WIFE OF AN EXECUTOR of a will is a competent attesting witness thereto. (In re Will of Lyon, 52.)

2. WILLS-STATUTE OF FRAUDS.-It is a matter of serious doubt whether the statute of frauds was ever intended to apply to testamentary dispositions of property. (Moran v. Moran, 443.)

3. WILLS-CONSTRUCTION-INTENT MUST CONTROL.-In construing wills, the intention of the testator, when ascertained, and not in violation of law, must control. (Westcott v. Binford, 530.) 4. WILLS-CONSTRUCTION OF-RULE IN SHELLEY'S CASE CANNOT OVERRIDE.-There is a material distinction between wills and deeds in the application of the rule in Shelley's case, and that rule, even if it is in force, will not be allowed to override the manifest and clearly expressed intention of the testator, but such intention will always be carried into effect if it can be ascertained. (Westcott v. Binford, 530.)

5. CONVERSION OF REALTY INTO PERSONALTY.—A power of sale, however peremptory in form, does not operate as a conversion in the aid of any particular purpose of the testator, where the plan or purpose fails by reason of illegality, lapse, or other cause. In such a case, the property retains its original character and goes to the heir or next of kin as real or personal estate, as the case may be. (McHugh v. McCole, 106.) 6.

WILLS-MARRIAGE-REVOCATION BY.-The marriage of a woman does not revoke her will, if her common-law disabilities in respect to the disposition of her property have been removed by statute. (In re Will of Lyon, 52.)

See Appeal, 9.

WITNESSES.

1. WITNESSES.-THE WIFE OF AN INSANE HUSBAND cannot testify for him, if the statute declares that a wife cannot testify for or against her husband without his consent. Being insane, he cannot grant such consent. (Falk v. Wittram, 184.)

2. WITNESSES-MATTER OF OPINION-COMPETENCYDETERMINATION OF.-Whether a witness, called to testify to any matter of opinion, has such qualifications and knowledge as to make his testimony admissible is a preliminary question for the judge presiding at the trial, but his decision is not conclusive, if it is clearly shown to be erroneous in matter of law. (Germania Life Ins. Co. v. Lewin, 215.)

3. EXPERT EVIDENCE IS NOT ADMISSIBLE TO PROVE what was the cause of an explosion of the water glass of a boiler, when the question before the jury is whether or not a valve was opened, or, if opened, whether such opening was sudden. Expert evidence may properly be received as to what would have been the effect of opening such valve suddenly, but experts should not be permitted to decide a question of fact, and any question asked an expert must be so framed as not to require him to pass on the credibility of any other evidence in the cause. (Maitland v. Gilbert Paper Co., 137.)

4.

WITNESSES-EXPERTS-COMPETENCY OF, IN CASES OF POISONING BY CYANIDE OF POTASSIUM.-If a medical witness is called, as an expert, to prove, among other things, the symptoms attending a case of poisoning by cyanide of potassium, he is competent to testify, after a foundation is laid, showing that he is a regularly licensed physician, of extensive practice and experience, and has made a special study, for many years, of toxicology, although he may have had no actual experience with cases of poisoning with that particular drug. (Germania Life Ins. Co. v. Lewin, 215.)

5. WITNESSES-IMPEACHMENT.-If a witness has been impeached, it is the duty of the jury to disregard his testimony, unless it is corroborated in material particulars. (Powell v. State, 277.)

6. WITNESSES-IMPEACHMENT.-If the credibility of a witness is attacked by an effort to impeach him by legal methods, the jury become the triers of the credibility of the witness sought to be impeached, and of the witnesses by whose testimony the attack is made. They are to weigh the opposing testimony, and at last say whether or not in their judgment the witness has been impeached. (Powell v. State, 277.)

See Trial, 3.

WOMAN'S RIGHTS.

See Officers, 2.

WRITS.

1. A WRIT OF ASSISTANCE WILL NOT BE ISSUED where there is a bona fide contest as to the right to the possession of land under a sale, or where the rights of the parties have not been adjudicated in the principal suit. (Roach v. Clark, 353.)

2. THE ISSUING OF A WRIT OF ASSISTANCE is within the discretion of the court, but can be justified only when the right is clear, and there is no equity or appearance of equity in the defendant, and when the sale and proceedings under the decree are beyond suspicion. (Roach v. Clark, 353.)

See Appeal, 16.

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