VEHICLES. 362 (N.Y.Sup.) A cestui que trust is not debarred from following trust property, which her trustee has stolen or given away without See Master and Servant, 361. consideration, because by the appointment she put him in position to defraud her.-Behrmann v. Seybel, 166 N. Y. S. 254. 372(3) (N.Y.Sup.) Evidence held to show that defendant was a bona fide purchaser of a bond and mortgage belonging to a trust estate, without notice of infirmity inherent in the transaction.-Behrmann v. Seybel, 166 N. Y. S. 254. Evidence held sufficient to show that purchaser of bonds and mortgages, belonging to a trust estate, gave valuable consideration therefor. -Id. In a suit to follow trust property, evidence held to show that defendant estate gave full value for a mortgage in question, where trustee transferred mortgage to himself as executor of defendant estate.--Id. ULTRA VIRES. See Municipal Corporations, 247, 248. UNDISCLOSED AGENCY. See Principal and Agent, 145, 146. UNDUE INFLUENCE. See Wills, ~164, 324. UNITED STATES. See Taxation, 8. USURY. 1. USURIOUS CONTRACTS AND TRANSACTIONS. (A) Nature and Validity. (N.Y.) In absence of interdicting statute, lender and borrower may agree that rate of interest other than that fixed as legal rate by statute shall be paid from date to either maturity or payment of loan.-Union Estates Co. v. Adlon Const. Co., 116 N. E. 984, 221 N. Y. 183. VENDOR AND PURCHASER. See Executors and Administrators, 320; Infants. 37: Judgment, 682; Mortgages, 521; Partition, 109, 110; Railroads, 194; Sales; Taxation, 615-667; Trusts, 357. II. CONSTRUCTION AND OPERA- 79 (N.Y.Sup.) That some clauses in mortgage required of purchasers of property by seller thereof are not contained in Real Property Law. §§ 254, 258, as amended by Laws 1917, cc. 681, 682, is not controlling on question whether clauses are usual within contract between parties.-Goldberg v. Norek, 166 N. Y. S. 1023. In contract by seller of property conveyed subject to 20 leases, held, that there was no warranty of aggregate rentals.-Id. 81 (N.Y.Sup.) Whether clause in mortgage required by seller of buyers of realty is "usual," within contract between parties, is question of fact.-Goldberg v. Norek, 166 N. Y. S. 1023. IV. PERFORMANCE OF CONTRACT. (A) Title and Estate of Vendor. 130(2) (N.Y.Sup.) Title to property described as 400 feet west of P. avenue, that being the physical line adopted by owners, was not unmarketable because the easterly line of the former avenue was 5 feet west of the line actually adopted and 405 feet west of P. avenue. Celestial Realty Co. v. Childs, 166 N. Y. S. 921. 130(9) (N.Y.Sup.) Encroachment of walls of building erected in 1881, 44 inches, and of the chimneys by 81⁄2 inches, did not render the title unmarketable, in view of Laws 1899, c. 646.-Celestial Realty Co. v. Childs, 166 N. Y. S. 921. Encroachments by show windows, steps, cornices, etc., being easily removed, or restricted For cases in Dec. Dig. & Am. Dig. Key No. Series & Indexes see same topic and KEY-NUMBER III. CHANGE OF VENUE OR PLACE See Descent and Distribution, 8. OF TRIAL. 52(1) (N.Y.Sup.) Under Code Civ. Proc. § VIEW. 987, defendant's motion, on ground of conven- See New Trial, 44. Y. S. 613. 52(1) (N.Y.Sup.) Defendant's motion for change of venue to New York county on ground See Elections. 52(2) (N.Y.Sup.) Although plaintiff's wit- 52(3) (N.Y.Sup.) That four of plaintiff's 52(4) (N.Y.Sup.) Place of trial will not be S. GGS. 67 (N.Y.Sup.) Affidavit on defendants' mo- See Execution, VILLAGES. VOTERS. WAGES. 70; Master and Servant, See Arbitration and Award, 15; Contracts, WAR. 62, See Aliens, 61; Constitutional Law, 4 (N.Y.Sup.) Action of commissioner of li- 338. Commissioner of licenses of New York City 68 (N.Y.Sup.) Where a defendant moves for 72 (N.Y.Sup.) In view of Code Civ. Proc. carbolic acid crystals, seller held not entitled to 10(1) (N.Y.Sup.) State of war does not con- 10(2) (N.Y.Sup.) A corporation created by legal existence and officers or agents authorized to do business or bring actions.-Fritz Schulz, Jr., Co. v. Raimes & Co., 166 N. Y. S. 567. See Easements. WAYS. WEATHER. 10(2) (N.Y.Sup.) Defense going to disability of residents and citizens of Germany to maintain action because of existing war with German Em- See Carriers, 133. pire should be set up by answer, and not summarily disposed of on affidavits on motion to dismiss complaint.-Rothbarth v. Herzfeld, 166 N. Y. S. 744. 15 (N.Y.Sup.) After a formal declaration of war, it is illegal for any resident of the United States to have any dealings with adherents of the public enemy.-Fritz Schulz, Jr., Co. v. Raimes & Co., 166 N. Y. S. 567. WARDS. See Guardian and Ward. WARRANTY. WEIGHTS AND MEASURES. 6 (N.Y.Sup.) Where apples were bought by weight, and were to be weighed by purchaser, or some one approved by him, boxes held merely containers, within General Business Law, § 17a, as added by Laws 1912, c. 81, not required to be marked in accordance with section 17.-De Hoff v. Aspegren, 166 N. Y. S. 1019. WHARVES. See Navigable Waters, 43. MENTARY POWER. 12 (N.Y.Mun.Ct.) An action for waste could I. NATURE AND EXTENT OF TESTAnot be instituted by the lessee of a tenement house. Stark v. Sheffield Farms-Slawson-Deck-15 (N.Y.Sup.) Under Decedent Estate Law, er Co., 166 N. Y. S. 411. § 17, the computation of the half which can be given to charity is made on the basis of the testator's estate at the time of his death, less debts. In re Brooklyn Trust Co., 166 N. Y. S. 513. WATER-CLOSETS. See Health, 32. WATERS AND WATER COURSES See Eminent Domain, 84; Navigable Waters. VII. CONVEYANCES AND CON TRACTS. II. TESTAMENTARY CAPACITY. 52(3) (N.Y.Sup.) Proponent of will and codicil has burden of proving testatrix's mental capacity at time of execution where she is shown to have been incompetent at periods.In re Strong's Will, 166 N. Y. S. 862. 158(2) (N.Y.Sup.) Where parties to water 55(2) (N.Y.Sup.) In view of Code Civ. power grants divided among themselves remaining water rights, one of these grants could not be construed because of ambiguity most strongly against the grantors.-Dexter Sulphite Pulp & Paper Co. v. Jefferson Power Co., 166 N. Y. S. 311. Proc. § 2614, codicil to will cannot be admitted to probate on proof that testatrix who was at times incompetent enjoyed lucid intervals; it not appearing that instrument was executed during such interval, or that thereafter she rat- III. CONTRACTS TO DEVISE OR BE- 1582(1) (N.Y.Sup.) Where complaint claimed violation of water power rights, but impossibility of accurate measurement, a judgment requiring defendant to use some device for accurately measuring water used was proper.Dexter Sulphite Pulp & Paper Co. v. Jefferson 58(2) (N.Y.Sup.) Agreement by testator's Power Co., 166 N. Y. S. 311. Where a grant had been held to be of so much water as would pass through a prescribed aperture under head available, a judgment requiring defendant to take water through a standard rectangular metal aperture with square edges was proper.-Id. 1582(2) (N.Y.Sup.) In action to restrain violation of water power rights, it was unnecessary for judgment to limit plaintiff's water rights beyond limitation provided in a former judgment.-Dexter Sulphite Pulp & Paper Co. v. Jefferson Power Co., 166 N. Y. S. 311. daughter to devise and bequeath property to the testator's housekeeper, in consideration of his not changing his will, held unenforceable, where only testimony that testator thought of changing his will, or refrained from so doing, was given by the housekeeper's daughter.-Cross v. Hoy, 166 N. Y. S. 516. 59 (N.Y.Sup.) Promise of devisee and legatee, after will was executed, to devise and bequeath the property to a particular person, though made to the testator, held not binding, unless founded upon a consideration.-Cross v. Hoy, 166 N. Y. S. 516. For cases in Dec. Dig. & Am. Dig. Key No. Series & Indexes see same topic and KEY-NUMBER V. PROBATE, ESTABLISHMENT, IV. REQUISITES AND VALIDITY. (B) Form and Contents of Instruments. 94 (N.Y.Sur.) Requirement that will be in writing is not rule of law of evidence, but is substantive law relating to statute of wills.-229 (N.Y.Sup.) Plaintiff, who holds title to In re Lummis, 166 N. Y. S. 936. (C) Execution. (B) Actions to Establish or Determine Validity in General. land, through heir, is entitled to attack validity of will and its probate.-Carthage Development Co. v. Cushman, 166 N. Y. S. 483. (D) Probate or Record of Foreign Wills. 111(2) (N.Y.Sur.) Under Decedent Estate Law, § 21, held, that testatrix, whose signature was followed by provisions of a will naming an executor, did not sign at the end, and probate 243 (N.Y.) Under Decedent Estate Law, § will be denied. In re Van Tuyl's Will, 166 N. Y. S. 153. 120 (N.Y.Sup.) On petition to admit will to probate, facts held not to show publication by testator and request to witnesses to sign.-In re Kenney's Will, 166 N. Y. S. 478. 23, and Code Civ. Proc. § 2695, it is duty of surrogate to admit nonresident's will to probate in been duly admitted to probate elsewhere.-In re this state, unless it appears that such will has Connell's Will, 116 N. E. 986, 221 N. Y. 190. (H) Evidence. Testator may, in publishing his will and requesting witnesses to sign, adopt words of an-288(1) (N.Y.) On petition for probate of other in any way which evidences such adon- will of a nonresident, burden of proving that tion; but, in determining whether he did, men- will has been duly admitted to probate elsewhere tal and physical condition of testator, character is on party objecting to probate.-In re Connell's of testamentary disposition, and agency of chief Will, 116 N. E. 986, 221 N. Y. 190. beneficiary must be considered.-Id. (F) Mistake, Undue Influence, and Fraud, 164(1)(N.Y.Sup.) In a will contest on ground of undue influence, it was error to allow the history of testatrix's family to be given in evidence, for purpose of exciting sympathy or prejudice of jury.-In re Sweeney's Will, 166 N. Y. S. 193. 302(5) (N.Y.Sup.) When attesting witnesses are dead, forgetful, or hostile to proponents, attestation clause adds weight to slight evidence of regular execution; but it is entitled to little weight, where all witnesses agrec, and everything that happened at execution of will is minutely detailed.-In re Kenney's Will, 166 N. Y. S. 478. (I) Hearing or Trial. It was error to allow will contestant, a son of testatrix, to testify as to injuries received by 319 (N.Y.Sur.) Postponements should be his brother in business turned over to them by granted contestants of a will, who demand a father, in circumstances under which he re- jury trial, only for causes convincing and ceived them, although limited to question of un- peremptory in law.-In re Wolfe's Will, 166 due influence.-Id. N. Y. S. 909. It was error to allow contestant, a son of testatrix, to testify to personal transactions with his father, and details of his business with him, including alleged advances made to his father over 20 years before, although limited to ques tion of undue influence.-Id. It was error to allow contestant, a son of testatrix, to testify as to instructions given by his father to testatrix, although limited to question of undue influence.-Id. 322 (N.Y.Sup.) Where surrogate, in proceedings for probate of will, failed to cause subscribing witnesses to be examined and their testimony reduced to writing under oath, as required by statute then in force (Laws 1837, c. 460, $$ 10, 11, 17), he acquired no jurisdiction, although all heirs, by admission, conceded that ment Co. v. Cushman, 166 N. Y. S. 483. will was properly executed.-Carthage Develop It was error to allow contestant, a son of tes-324 (2) (N.Y.Sup.) Where evidence is such tatrix, to testify as to transaction with testatrix, in his efforts to obtain loans from her, 8 or 9 years before will was made, although limited to question of undue influence.--Id. that reasonable men might draw different inferences, question of testator's capacity is for jury.-In re Strong's Will, 166 N. Y. S. 862. In proceeding for probate of will and codicil, question of testatrix's mental competency at time of executing codicil held, under evidence, for jury, and hence direction of verdict was improper.-Id. 165(5) (N.Y.Sup.) It was error to allow will contestant, a son of testatrix, to testify as to statements made by husband of testatrix over 20 years before including statements made by husband, not in her presence, that he turned his 324(3) (N.Y.Sup.) In a will contest, evidence property over to her to keep in her name until held not to warrant submission of issue of undue she died, and then to give it to her children, influence to jury.-In re Sweeney's Will, 166 N. share and share alike, although limited to ques- Y. S. 193. tion of undue influence.-In re Sweeney's Will, 166 N. Y. S. 193. (G) Revocation and Revival. 196 (N.Y.Sup.) A will executed during period of incompetency can acquire validity only by subsequent ratification at time of competency. In re Strong's Will, 166 N. Y. S. 862. (J) Judgment or Decree. 355 (N.Y.Sur.) It is no ground for granting motion, made after the proper time, to vacate decree of probate of will, because of refusal of postponement of trial of issues raised by contestants, that they have changed counsel.-In re Wolfe's Will, 166 N. Y. S. 909. (K) Review. 400 (N.Y.) Where what was done as to pro- (L) Fees and Costs. 402 (N.Y.Sup.) Under Code Civ. Proc. § (M) Operation and Effect. 418 (N.Y.Sup.) Presumptive value of surro- VI. CONSTRUCTION. 436 (N.Y.Sur.) Occasionally, in absence of 439 (N.Y.Sup.) Intent of testator should 439 (N.Y.Sur.) Where precedents must be 440 (N.Y.Sur.) Testator's intention, ascer- S. 910. 440 (N.Y.Sur.) In construing will, testa- 446 (N.Y.Sup.) Only where there is a fair 455 (N.Y.Sur.) Where testator fails to 487(1) (N.Y.Sur.) Departures from rule or custom, is not deemed by court to be con- Events subsequent to making of will were in- 487 (2) (N.Y.Sur.) Evidence of circum- 487 (3) (N.Y.Sur.) Testator's declarations 488 (N.Y.Sur.) Fact that will, absolutely Testator's declarations as evidence of in- (C) Survivorship, Representation, and (E) Nature of Estates and Interests Cre- 597(4) (N.Y.Sup.) Under will giving testa- 597(4) (N.Y.Sur.) Under will devising re- 601(2) (N.Y.Sup.) Under wife's will giving Generally, testator's intent is not inferable 614(13) (N.Y.) Gift to testator's wife of all For cases in Dec. Dig. & Am. Dig. Key No. Series & Indexes see same topic and KEY-NUMBER |