VERDICT.

1. In an action for personal injuries, a verdict of a jury will not be set aside as excessive unless it manifestly appears to be the result of passion, partiality, prejudice or corruption. (Minick agt. City of Troy, 19 Hun, 253.)

VOLUNTARY TRUSTS.

1. Where a father deposited his earnings in a savings bank, in his own name, as trustee for his children severally, in sums to draw the largest interest, but, under circumstances which make it clear that he did not intend thereby to part with his ownership of, or interest in, the moneys, or the right to control the same:

Held, that no such trust was created by such deposit, in favor of the children, as would enable them to take the same from the control of their father. (Weber agt. Weber and others, ante, 255.)

2. Also, that whether a trust was created was a question of fact, in determining which the court would give effect to the purposes and objects which the settler had in view in making the deposits. (Id.)

WILL.

Testator gave a daughter a legacy of $5,000 and a brother a legacy of $2,000. He further directed his executor to invest a sum sufficient to pay his widow during her life, $200 per annum, and another sum sufficient to pay a son $100 per annum, during life. He then gave the residue of his estate to the daughter to whom he had given the $5,000 except the prin cipal of the two sums invested to pay the annuities to his son and widow, "which I direct to go to my heirs-at-law." The executor invested sums sufficient to produce the annuities when there was not sufficient to pay the $5,000 legacy to the daughter, and that of $2,000 to the brother, in full :

Held, 1. That on the death of the widow and the son, the principal of the sums invested to produce these annuities should be applied to the payment of the balances unpaid on the $5,000 and the $2,000 legacies.

2. That such legatees were entitled to interest upon the unpaid balances of their legacies, commencing one year after the granting of letters testamentary. (Wilde agt. Wilde et al., ante, 71.)

2. Where a testator sells and conveys all of his real estate previously devised by him, his estate and interest therein is wholly divested, and not merely altered. (Matter of Dowd, ante, 107.)

3. At common law the least altera

tion of the interest of the testator in property devised or bequeathed by him, would work a revocation of the devise or bequest of such property. (Id.)

4. An alteration of the nature or

character of the interest of the testator in the property devised or bequeathed does not, under the provisions of sections 42 and 48 of 2 Revised Statutes, 64, in all

cases work a revocation in respect to such property. (Id.)

5. But where the testator, in his lifetime, wholly divests himself of the property previously devised or bequeathed, the revocation is, as to such property, as complete and perfect as it was at common law. (Id.)

6. A testator, by his will, bequeathed to his wife all his personal estate and the use for life of all his real estate, and authorized his executors, together with his wife, to sell and convey his real estate, and to deposit the avails in a savings bank, his wife to receive, from time to time, while any of the fund so deposited remained, sufficient for her support during her life, and if any of the avails of such sale remained after paying such expenses, together with her funeral expenses, and the reasonable expenses of the executors, the balance to be paid to St. Mary's Roman Catholic Church and the Roman Catholic orphan asylum. The testator, in his lifetime, and after the execution of the will, sold all his real estate and deposited the avails in the Rochester Savings Bank, such avails constituting his entire estate. His wife died after this sale, but before the death of

the testator:

Held, that the corporations named in this will could not take as legatees, the subject-matter of the devise and bequest to them being totally destroyed or changed by the voluntary act of the testator in his lifetime. (Id.)

7. The whole scheme of the testator's testamentary disposition was essentially varied by him, and the law presumes a revocation in consequence of the change in his family and property. The fact that he deposited the avails of the sale of his real estate in the savings bank is not sufficient to rebut this presumption of law:

Held, further, that the Roman Catholic orphan asylum could not claim as residuary legatees. (Id.)

8. When it is manifest, from the expressed words of the will, that the gift of the residuum is confined to the residuum of a particular fund, or description of property, or to some certain residuum, the legatee will be restricted to what is thus particularly given. (Id.)

9. As in this case if the wife had survived there would have been no residuum as she would have taken the whole as personal estate; she having died before the testator, and the entire estate, by his subsequent act, having become personal property, and being such, at the time of his death, it is to be treated as a lapsed legacy, and in the absence of a legatee capable of taking under the will pro tanto revoked, it must be distributed to the next of kin, under the statute of distribution. (Id.)

10. Is the provision of the act of 1848 as to devises and bequests for charitable uses repealed by the act of 1860, "relating to wills" (Chap. 360, Laws of 1860), quære. (Id.)

11. Where a testator gave to his executors all his estate, real and personal, to hold the real estate during the joint lives of his two sisters, A. and E., and the life of the survivor, in trust, to receive the rents and profits of the estate, to sell the personal estate whenever they might deem it wise, and reinvest the proceeds as they might consider safe, and to pay four-fifths of the income of the estate, as the same should be received, unto the mothers and three sisters of the deceased, and the remaining four-fifths unto the testator's wife, and upon the further trust during the joint lives of the two sisters named, and the life of the survivor, to sell and dispose

of the real estate and to receive and invest the proceeds, and that in case H., a sister of the testator, should marry and have children to pay one-fifth part of the estate, upon her death, to her children, and upon the further trust, upon the death of the mother and three sisters of the testator, to pay and transfer the other four-fifths, and the residue and remainder thereof unto the wife of the testator, and in case of her death to such person or persons as she might, by last will and testament, appoint:

Held, that the trust over fourfifths of the testator's estate and its proceeds being continued until the death of the mother and three sisters of the deceased was invalid, and the testator must be regarded as having died intestate with respect thereto, but that the gift of one-fifth of the estate to the children of the testator's daughter, H., was valid. (Giraud agt. Giraud, ante, 175.)

12. An action, commenced more than fourteen years after the will was admitted to probate, for its construction, and for an adjudication of its invalidity, is not barred by the statute of limitations, the corpus of the estate still remaining in the hands of the executors and trustees undistributed. (Id.)

13. The plaintiff, a beneficiary under the will, was held not to be estopped from maintaining such action for the reason that she had acquiesced in the provisions of the will by receiving her proportion of the income according to its terms. (Id.)

14. The omission by a party to as sert a right from ignorance of it, does not conclude him. Silence and mere passivity cannot create an estoppel where the other party had equal knowledge of the facts and conditions in which their respective rights originate. (Id.)

15. But, in the case above alluded to, the executors of the estate and the other beneficiaries under the will who had, with the plaintiff, received their proportion of the income, were held not to be liable to account for the same. (Id.)

16. Where money has been paid with full knowledge of all the facts and circumstances under which it is demanded, it cannot be recovered back upon the ground that the party paying it rested under a mistake as to his legal rights and obligations. (Id.)

17. Where there has been an equitable conversion of real estate into personalty for the purposes of a will, and the purpose is invalid as a whole or in part, the conversion fails "pro tanto.” (Id.)

18. Where a testator, after giving legacies to certain persons named in his will, to the amount of $53,000, directed the rest and remainder of his estate to be invested by his executors so as to yield income, which income he gave to his wife for life, and by a final codicil, after specifically making some new provisions in favor of his wife, directed that the sum of $60,000 should be set apart from his estate and should be invested by his executors for the benefit of his wife, the testator, however, declaring, in and by the final codicil, that the provisions therein made for his wife were in addition to the provisions he had made in his will and previous "codicils" for her; and that his will and codicil, except as changed by the last codicil, were confirmed:

Held, that the legacies, to the amount of $53,000, given to others were not disturbed by the new provisions created in favor of his wife by the last codicil; and that the principal sum of $60,000 therein directed to be invested by his executors for the benefit of his wife must be raised from the

rest and remainder of the estate, after the satisfaction of the legacies, although the income of this rest and remainder had been given to her by the will. (Brown agt. Cleveland, ante, 293.)

19. Where there is a real repugnancy between the will and a codicil thereto, then the disposition made by the latter must prevail as the latest expression of the testator. But there is no hostility between the codicil and will under consideration which prevents the construction above indicated, by which effect is given to the provisions of both will and codicil. (Id.)

20. Where a testator, by a final codicil to his will, speaks of "a codicil or codicils to his will theretofore executed, and the expression "codicils" is repeated in other parts of the same instrument, but no codicil is produced, other than the one last executed, and another one executed some years before, and no evidence being adduced of the fact of any other codicil having been executed:

Held, that it must be accepted as a fact that there were no other codicils except the two produced. (Id.)

21. Where a clause in the testator's will read as follows: "Ninth. I give and bequeath to the American Bible Society, the American Board of Commissions of Foreign Missions and the Home Missionary Society, the sum of $1,000 each:"

McKeon agt. Kearney, 57 How., 350). (Leonard et al. agt. Davenport, ante, 384.)

22. A misnomer or misdescription of a legatee or devisee, whether a natural person or a corporation, will not invalidate the provision if, either from the will itself or evidence aliunde, the object of the testator's bounty can be ascertained. (Id.)

23. To identify a particular corporation as the one intended, where a name other than the corporate name is used, parol evidence is allowable to aid in determining the intention of the testator in the use of the words in the bequest. (Id.)

24. In an action for the construction of a will the costs are in the discretion of the court. (Id.)

WITNESS.

1. A county asurer who appears before a committee appointed by the board of supervisors of a county, in obedience to a subpœna issued by the chairman of such committee, in accordance with the provisions of section 3 of chapter 190 of the Laws of 1858, cannot be compelled to answer interrogatories concerning moneys in his hands as county treasurer, when he claims that such answers might subject him to a criminal prosecution, or to a penalty or forfeiture. (Matter of Proceedings against Dickinson, ante, 260.)

The witness is exempt from answering because, by the Revised Statutes (vol. 3 of 6th edition, page 671, section 171) and the common law, no witness can be required "to give any answer which will have a tendency to accuse himself of any crime or misdemeanor, or to expose him to any penalty or forfeiture." (Id.)