and 121 New York State Reporter

1. Acts constituting conversion and
liability therefor.

After demand and refusal to pay, an action
for conversion will lie against one who has re-
ceived money in a fiduciary capacity.-Jackson
v. Moore (Sup.) 1101.

TRUSTS.

Charitable trusts, see "Charities."

a prior act of trustee.-In re Long Island Loai
& Trust Co. (Sup.) 65; Appeal of Sloan, Id.

Trustee, relying on decree in accounting to
estop beneficiary, has burden of showing that
the question involved was litigated.-In re Long
Island Loan & Trust Co. (Sup.) 65; Appeal of
Sloan, Id.

Testamentary trustee held not liable for re-
fusing to accept refund of dividends erroneousl
paid out to life beneficiary as income.-In r

Combinations to monopolize trade, see "Mo- Elting (Sup.) 833; In re Curtiss' Will, Id.
nopolies," § 1.

Creation by will, see "Wills," § 4.

The division of a testamentary trust estate
into five separate trusts, disclosed in an ac-

Trust deeds, see "Chattel Mortgages"; "Mort- counting by the trustee and passed upon and
gages."

§ 1. Creation, existence, and validity.
Evidence in action to declare trust as to pro-
ceeds of sale of real property examined, and
held insufficient to show the existence of a trust
relation arising out of contract.-Mackall v.
Olcott (Sup.) 757.

Evidence in action to declare trust as to pro-
ceeds of sale of real property examined, and
held insufficient to show the existence of a trust
ex maleficio by reason of confidential relations.
-Mackall v. Ölcott (Sup.) 757.

approved by the surrogate over objection, be-
comes res judicata.-In re Elting (Sup.) 833;
In re Curtiss' Will, Id.

Under Code Civ. Proc. § 2813, surrogate's
decree approving final account of testamentary
trustee held to conclude parties thereto, and
also remainderman not in esse, as to alleged
devastavit; section 2481 being inapplicable.-
In re Elting (Sup.) 833; In re Curtiss' Will,
Id.

Certain conditional devisees in remainder of a
trust fund held necessary parties to a suit by
the receiver of the first tenant in remainder to
compel the trustee to file an interlocutory ac-
pur-count.-Leonard v. Pierce (Sup.) 978.

Transferee of corporate stock held to hold the
same as trustee to accomplish the specific
pose for which the stock was conveyed, so as to
be liable to an accounting.-Slayback v. Ray-
mond (Sup.) 931.

Savings deposited in trust held to cover money
deposited after the death of the beneficiary.
In re Bulwinkel (Sur.) 250.

§ 2. Construction and operation.

Under Personal Property Law, § 3, title to
trust personalty held to vest in the cestui que
trust, so as to be liable for his debts.-Ullman
v. Cameron (Sup.) 148.

Trust created by will held to be in favor of
infant children of testator, not his widow.-
Brown v. Doherty (Sup.) 563.

§ 3. Management and disposal of trust
property.

Entry in report of trustee to beneficiary held
not notice to beneficiary of sale of certain prop-
erty to the trust.-In re Long Island Loan &
Trust Co. (Sup.) 65; Appeal of Sloan, Id.

The sale by a trustee of its own property to
the trust is void as against public policy.-In
re Long Island Loan & Trust Co. (Sup.) 65;
Appeal of Sloan, Id.

That power conferred on trustee is broad
does not discharge him from obligation of good
faith and accounting.-Spier v. Hyde (Sup.) 285.
§ 4.

Accounting and compensation of
trustee.

Refusal to open former decree in accounting
between trustee and beneficiary held not to
estop beneficiary in a subsequent accounting
from questioning validity of prior act of trus-
tee. In re Long Island Loan & Trust Co.
(Sup.) 65; Appeal of Sloan, Id.

Decree on trustee's accounting held not to
estop beneficiary from questioning validity of

account held maintainable against him in his
A suit to compel a testamentary trustee to
representative capacity only.-Leonard v. Pierce
(Sup.) 978.

5. Establishment and enforcement of

trust.

Under Real Property Law (Laws 1896, p.
592, c. 547, § 207), a trust of real property could
not be proved by parol, as against an answer
containing general denial.-Hill v. Warsawski
(Sup.) 551.

TURNPIKES AND TOLL ROADS.

Taxation of turnpike company, see "Taxation,"
§ 1.
ULTRA VIRES.

See "Corporations," § 2.

UNIONS.

See "Trade Unions."

UNITED STATES.

Taxation of federal bonds, see "Taxation," § 4.

UNIVERSITIES.

Taxation of, see "Taxation," § 1.

USE AND OCCUPATION.

A reservation in a sale of premises of the
right of the vendor to use part thereof for a

1215

amited time held not subject to any duty to |§ 1. Construction and operation of con-
pay for the use.-Becker v. Davis (Sup.) 422.

USURY.

1. Usurious contracts and transac-
tions.

Whether a transaction was a sale or loan of
personal credit, or a cloak to cover a usurious
an, is a question of fact.-Forgotson v. Raubit-
chek (Sup.) 503.

Contract for purchase of property held not
tainted by usury.-Flagg v. Fisk (Sup.) 530.

In an action to reform a deed, held, that the
evidence showed an investment by the grantee,
rather than a loan to the grantor, so as to show
usury.-Connolly v. Keenan (Sup.) 630.

Mere fact of payment of interest in excess of
legal rate held not to authorize an inference of
a usurious agreement.-Bosworth v. Kinghorn
(Sup.) 983.

Holder of usurious note held to have burden
of proving that he was a bona fide purchaser.
-Simpson v. Hefter (City Ct. N. Y.) 243.

A plea of usury in an action on a note held
good.-Simpson v. Hefter (City Ct. N. Y.) 243.
Accommodation note held void because of
usury in discounting the same.-Simpson v.
Hefter (City Ct. N. Y.) 243.

Where a note is payable in the city of New
York, it was governed as to interest by the
laws of New York, though no rate was fixed.-|
Simpson v. Hefter (City Ct. N. Y.) 243.

VACANCY.

In office, see "Judges," § 1.

VACATION.

Effect of irregular vacation of attachment on
liability on bond, see "Attachment," § 4.
Vacating particular proceedings.
See "Attachment," § 3; "Judgment," §§ 1, 3.
Order in dispossession proceedings, see "Land-
lord and Tenant," § 6.

VARIANCE.

tract.

Option for reconveyance on repayment held
to survive time limit, where grantee receives
payments thereon.-Connolly v. Keenan (Sup.)
630.

Where a grantor, in a deed with an option
for payment and reconveyance, finally refuses
to make further payments, claiming that his
advances to the grantee have exceeded the con-
sideration of the deed, he must at once sur-

render and deed the property, or exercise his
option to purchase.-Connolly v. Keenan (Sup.)
630.

The measure of liability of a person under an
option contract for the purchase of a tract of
land held determined by the actual acreage of
the tract.-Warden v. Tesla (Sup.) 853.

§ 2.

Modification or rescission of con-
tract.

Where a purchaser of land, under a contract
by the vendor to repurchase in case the ven-
dee did not sell the same at a profit, parted
with a portion of his interest in the land, he
could only enforce the vendor's agreement to
the extent of the loss sustained to such ven-
dee's interest.-Maier v. Rebstock (Sup.) 85.

Whether a purchaser of land had used rea-
sonable diligence to resell the same, and wheth-
er the vendor had acquiesced in the purchaser's
delay in demanding reconveyance under a con-
tract, held for the jury.-Maier v. Rebstock
(Sup.) 85.

A purchaser of real estate held entitled to a
reasonable time, after the expiration of the
time limited in a contract by the vendor to
repurchase, within which to elect to enforce
the same.-Maier v. Rebstock (Sup.) 85.

§ 3. Performance of contract.

Specific performance of contract to purchase
land denied, because of mistake as to the area
of land contracted to be sold.-McIntyre v. Har-
rington (Sup.) 1028.

§ 4. Remedies of vendor.

In an action on an option contract for the pur-
chase of a tract of land, the exclusion of evi-
dence offered by defendant as to the number
of acres in the tract held error.-Warden v.
Tesla (Sup.) 853.

VENUE.

§ 1. Change of venue or place of trial.
A party, by noticing a case for trial at a cer-
tain term, and by then appearing and secur-
ing a continuance, waives his right to move
for a change of venue.-Coleman v. Hayes
(Sup.) 12.

Change of place of trial to county of plain-
tiff's residence held error.-Ferrin v. Huxley
(Sup.) 1005.

VERDICT.

Setting aside, see "New Trial," § 2.

and 121 New York State Reporter

VESTED REMAINDERS.

Creation, see "Wills," § 4.

VICE PRINCIPALS.

See "Master and Servant," § 5.

VILLAGES.

See "Municipal Corporations," § 8.

WAGES.

See "Master and Servant," § 2.

See "Estoppel."

WAIVER.

Of objections to particular acts or proceedings.
See "Pleading," § 8; "Trial," § 7.
Breach of contract, see "Sales," § 2.

Of rights or remedies.

Amendment of certiorari to review tax assessment, see "Taxation," § 2.

Forfeiture of insurance, see "Insurance," § 7.

WARRANT.

For dispossession of tenant, see "Landlord and
Tenant," § 6.

WARRANTY.

By insured, see "Insurance," $$ 5, 6.
In leases, see "Landlord and Tenant," § 1.
On sale of goods, see "Sales," §§ 3, 5.

WATERS AND WATER COURSES.
§ 1. Conveyances and contracts.

Designation of beneficiary of insurance by will
see "Insurance," § 13.

Equitable conversion of devised partnership A
real estate, see "Partnership," § 3.
Gift of legacy, see "Gifts," § 1.
Legacy and succession taxes, see "Taxation
§ 4.

§ 1. Contracts to devise or bequeath.
Evidence in an action to partition land ke
insufficient to support a finding of a par
agreement, partly performed, of deceased
will his property to one of defendants.-Patt
v. Pattat (Sup.) 140.

§ 2. Requisites and validity.

Evidence held sufficient to admit a be graphic will to probate.-In re Palmer's W (Sur.) 249.

§ 3. Probate, establishment, and anndment.

A beneficiary under a destroyed will held : entitled to contest a later will, in case the struction was purposely done by testatrix vi she had testamentary capacity.-In re Raya Will (Sup.) 23.

A surrogate's order denying probate of a held sufficiently doubtful to require a trial jury, as authorized by Code Civ. Proc. § 258 re Rayner's Will (Sup.) 23.

A grantee in a deed held to have taken there under as an appurtenance of the premises the right of taking water from adjoining land.-Ma-In son v. Thwing (Sup.) 991.

Where probate of a will is denied, the exec A purchaser of lands held not a bona fide pur-utor named therein is entitled to appeal, un chaser as to the waters of a spring on the lands. Code Civ. Proc. §§ 1294, 2568.-In re Rayner -Mason v. Thwing (Sup.) 991. Will (Sup.) 23.

A reservation in a deed held to have rendered the right of taking water from the premises conveyed an appurtenance to other premises of the grantor.-Mason v. Thwing (Sup.) 991. § 2. Artificial ponds, reservoirs, and channels, dams, and flowage. One's easement of flooding lands held not affected by his periodical letting the water out, to suit his own pleasure only.-Hall v. State (Sup.) 338.

Where a surrogate's decree denying proba of a will is not entirely satisfactory, it will reversed, and the issues of fact directed to tried by a jury.-In re Shannon's Will (Sup 656.

A bequest by an attorney held not to includ claims for legal services.-In re Northup's W (Sup.) 318; In re Long Island Loan & Tru Co., Id.

A will construed, and held, that the childre of a deceased daughter of the testator took ai of her share under the will, and not as next e kin, subject to the interest of her husband.→ Lewisohn v. Henry (Sup.) 325.

B

A

Where a will is not punctuated with accura- | under Code Civ. Proc. § 834.-Becker v. Metro-
cy, or even systematically, the punctuation aids politan Life Ins. Co. (Sup.) 980.
its construction but little, and must otherwise
be disregarded, if it conflicts with the testa-
mentary scheme as gleaned from its provisions,
or prevents ascribing to its words their ordi-
nary meaning.-Lewisohn v. Henry (Sup.) 325.
A bequest in a will of a fund "to be equally
divided between the Indian missions and the
domestic missions of the United States of
America," does not entitle the "Domestic &
Foreign Missionary Society of the Protestant
Episcopal Church in the United States of Amer-§
ica" to claim the bequest.-Bowman v. Domes-
tic & Foreign Missionary Soc. of Protestant
Episcopal Church (Sup.) 621.

Physician held incompetent to testify as to in-
formation obtained in a professional capacity, Estates for years, see "Landlord and Tenant."

WEST PUBLISHING CO., PRINTERS AND STEREOTYPERS, ST. PAUL, MINN.