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any purpose until the undertaking 11. As to whether the said section has been given (Sec. 1326). _ (Ray did not require a notice of the mond agt. Richmond, 76 N. Y., 106.) entry of judgment, where judg

ment was in fact obtained; and as 8. An action cannot be maintained

to whether the reference to orders upon an undertaking, given under

was intended to apply where a section 348 of the old Code, upon judgment not an order was apappeal to the general term, with pealed from, quære. (Id.) out proof of service upon respondent, ten days before the com- 12. An order of reference to ascermencement of the action, of a

tain the damages sustained by written notice of the entry of the defendant, by reason of an injuncorder or judgment affirming the tion, recoverable upon an underjudgment appealed from. (Rae

taking, given under the Code of agt. Beach, 76 N. Y., 164,)

Procedure (old Code, sec. 222), can9. In an action upon such an under

not be granted until it has been

determined by judgment or other taking the only paper claimed to have been served was what pur

decision of the court that plaintiff

was not entitled to the injunction; ported to be a copy of an order

it is not sufficient that this apmade at general term, April 28, 1875, marked as received by re

pears by the facts developed upon

the trial. (Benedict agt. Benedict, spondent's attorney, April twenty

76 N. Y., 600.) ninth. There was no notice indorsed, and no intimation in or upon the paper that the same had been entered. The judgment roll,

USURY. which was produced on trial, contained the original order; there 1. A contract is to be governed by was nothing thereon to indicate the laws of the place where it is that it had been filed or entered, made, if it is not, by its terms, to prior to the entry of the judgment,

be performed elsewhere; but if, which was on May 15, 1875: by its terms, it is to be performed Held, that the presumption, in

in a state other than that in which the absence of proof, was that the it is made, the law of the state in order was neither filed nor entered which it is to be performed must until the judgment roll was filed govern (Affirming 8. O., 13 Hun, and docketed, and that, therefore, 405; see 8. C., 53 Hor., 40). (Dickthe facts failed to show service of inson agt. Edwards, ante, 24.) the required notice; and that the omission was not a mere irregu. 2. This is the general rule of conlarity, but a vital defect, fatal to struction. The exceptions to it a recovery; also, that defendants

stated. (Id.) did not waive service of notice by not pleading the failure to serve; 3. The case of Jewell agt. Wright (30 also, that they did not waive this N. Y., 259) approved, and the defense by basing their refusal to cases of Boren agt. Bradley (9 pay, when called upon, on other Abb. Pr. [N. 8.), 395), and Wayne grounds. (IN.)

County Savings Bank agt. Low (6

Abb. N. C., 76), disapproved. 10. Also, held, that an admission, (Id.)

upon the part of the appellant in the original action, without the knowledge or assent of the sure VENDOR AND PURCHASER. ties, to the effect that he had received the notice required, could 1. Where property is conveyed subnot affect the rights of the sure ject to a mortgage upon which ties. (Id.)

back interest has accrued, but has VOL. LVIII 84


not become payable according to

WILL. the terms of the instrument, and the vendee is obliged to pay such 1. Testator gave a daughter a legacy interest to the holder of the mort

of $5,000 and a brother a legacy gage when it becomes due:

of $2,000. Held, that the vendee has no

He further directed

his executor to invest a sum suffi. cause of action against the vendor

cient to pay his widow during her for the proportionate amount which had accrued prior to the

life, $200 per annum, and another

sum sufficient to pay a son $100 delivery of the deed, in the absence of an express covenant up

per annum, during life. He then on the part of the vendor to pay

gave the residue of his estate to

the daughter to whom he had the same. (Lynch agt. Rinaldo,

given the $5,000 except the prinante, 133.)

cipal of the two sums invested to 2. Rent, when apportioned as be

pay the annuities to his son and

widow, “which I direct to go to tween assignor and assignee, see note at foot of case. (Id.)

my heirs-at-law." The executor invested sums sufficient to produce the annuities when there was

not sufficient to pay the $5,000 VERDICT.

legacy to the daughter, and that 1. In an action for personal injur

of $2,000 to the brother, in full :

Held, 1. That on the death of ies, a verdict of a jury will not

the widow and the son, the prinbe set aside as excessive unless it

cipal of the sums invested to promanifestly appears to be the result

duce these annuities should be of passion, partiality, prejudice

applied to the payment of the balor corruption. (Minick agt. City

ances unpaid on the $5,000 and of Troy, 19 Hun, 253.)

the $2,000 legacies.

2. That such legatees were en.

titled to interest upon the unpaid VOLUNTARY TRUSTS. balances of their legacies, com

mencing one year after the grant1. Where a father deposited his earn

ing of

letters testamentary. ings in a savings bank, in his own (Wilde agt. Wilde et al., ante, 71.) name, as trustee for his children severally, in sums to draw the 2. Where a testator sells and conlargest interest, but, under cir

veys all of his real estate previ. cumstances which make it clear that he did not intend thereby to

ously devised by him, his estate

and interest therein is wholly divestpart with his ownership of, or in

ed, and not merely altered. (Mat. terest in, the moneys, or the right to control the same:

ter of Dowd, ante, 107.) Held, that no such trust was created by such deposit, in favor 3. At common law the least alteraof the children, as would enable

tion of the interest of the testator them to take the same from the

in property devised or bequeathed control of their father. (Weber

by him, would work a revocation agt. Weber and others, ante, 255.)

of the devise or bequest of such

property. (Id.) 2. Also, that whether a trust was

created was a question of fact, 4. An alteration of the nature or in determining which the court character of the interest of the would give effect to the purposes testator in the property devised or and objects which the settler had bequeathed does not, under the in view in making the deposits. provisions of sections 42 and 48 (Id.)

of 2 Revised Statutes, 64, in all


cases work a revocation in respect Held, further, that the Roman to such property. (Id.)

Catholic orphan asylum could not

claim as residuary legatees. (Id.) 5. But where the testator, in his

lifetime, wholly divests himself 8. When it is manifest, from the of the property previously devised expressed words of the will, that or bequeathed, the revocation is, the gift of the residuum is conas to such property, as complete

fined to the residuum of a parand perfect as it was at common ticular fund, or description of law. (Id.)

property, or to some certain resid

uum, the legatee will be restrict6. A testator, by his will, bequeath ed to what is thus particularly

ed to his wife all his personal es given. (Id.) tate and the use for life of all his real estate, and authorized 9. As in this case if the wife had his executors, together with his survived there would have been wife, to sell and convey his real no residuum as she would have estate, and to deposit the avails in taken the whole as personal estate; a savings bank, his wife to re she having died before the testaceive, from time to time, while tor, and the entire estate, by his any of the fund so deposited re subsequent act, having become mained, sufficient for her support personal property, and being such, during her life, and if any of the at the time of his death, it is to avails of such sale remained after be treated as a lapsed legacy, and paying such expenses, together in the absence of a legatee capawith her funeral expenses, and ble of taking under the will pro the reasonable expenses of the tanto revoked, it must be distriexecutors, the balance to be paid buted to the next of kin, under to St. Mary's Roman Catholic the statute of distribution. (Id.) Church and the Roman Catholic orphan asylum. The testator, 10. Is the provision of the act of in his lifetime, and after the exe

1848 as to devises and bequests cution of the will, sold all his for charitable uses repealed by real estate and deposited the avails in the Rochester Savings

the act of 1860, "relating to wills”

(Chap. 360, Laws of 1860), quære. Bank, such avails constituting his

(Id.) entire estate. His wife died after this sale, but before the death of 11. Where a testator gave to his the testator :

executors all his estate, real and Held, that the corporations personal, to hold the real estate named in this will could not take

during the joint lives of his two as legatees, the subject-matter of

sisters, A. and E., and the life of the devise and bequest to them the survivor, in trust, to receive being totally destroyed or chang

the rents and profits of the estate, ed by the voluntary act of the

to sell the personal estate whentestator in his lifetime. (Id.)

ever they might deem it wise, and

reinvest the proceeds as they 7. The whole scheme of the testa might consider safe, and to pay

tor's testamentary disposition was four-fifths of the income of the essentially varied by him, and the estate, as the same should be relaw presumes a revocation in con ceived, unto the mothers and three sequence of the change in his sisters of the deceased, and the refamily and property. The fact maining four-fifths unto the testathat he deposited the avails of tor's wife, and upon the further the sale of his real estate in the trust during the joint lives of the savings bank is not sufficient to troo sisters named, and the life of rebut this presumption of law: the survivor, to sell and dispose


of the real estate and to receive 15. But, in the case above alluded and invest the proceeds, and that to, the executors of the estate and in case H., a sister of the testator, the other beneficiaries under the should marry and have children will who had, with the plaintiff, to pay one-fifth part of the estate, received their proportion of the upon her death, to her children, income, were held not to be liable and upon the further trust, upon to account for the same. (Id.) the death of the mother and three sisters of the testator, to pay and 16. Where money has been paid transfer the other four-fifths, and with full knowledge of all the the residue and remainder thereof facts and circumstances under unto the wife of the testator, and which it is demanded, it cannot in case of her death to such per be recovered back upon the son or persons as she might, by ground that the party paying it last will and testament, appoint: rested under a mistake as to his

Held, that the trust over four legal rights and obligations. (Id.) fifths of the testator's estate and its proceeds being continued until 17. Where there has been an equitthe death of the mother and three able conversion of real estate into sisters of the deceased was invalid, personalty for the purposes of a and the testator must be regarded will, and the purpose is invalid as as having died intestate with re a whole or in part, the conversion spect thereto, but that the gift of fails pro tanto.(Id.) one-fifth of the estate to the children of the testator's daughter, 18. Where a testator, after giving H., was valid. (Giraud agt. Gi

legacies to certain persons named raud, ante, 175.)

in his will, to the amount of

$53,000, directed the rest and re12. An action, commenced more

mainder of his estate to be inthan fourteen years after the will

vested by his executors so as to was admitted to probate, for its yield income, which income he construction, and for an adjudi gave to his wife for life, and by a cation of its invalidity, is not

final codicil, after specifically barred by the statute of limita making some new provisions in tions, the corpus of the estate still favor of his wife, directed that the remaining in the hands of the sum of $60,000 should be set executors and trustees undis apart from his estate and should tributed. (Id.)

be invested by his executors for the benefit of his wife, the testa

tor, however, declaring, in and by 13. The plaintiff, a beneficiary un the final codicil, that the provi. der the will, was held not to be

sions therein made for his wife estopped from maintaining such

were in addition to the provisions action for the reason that she had

he had made in his will and preacquiesced in the provisions of vious codicils" for her; and the will by receiving her propor that his will and codicil, except tion of the income according to

as changed by the last codicil, its terms. (Id.)

were confirmed:

Held, that the legacies, to the 14. The omission by a party to as amount of $53,000, given to others

sert a right from ignorance of it, were not disturbed by the new does not conclude him. Silence provisions created in favor of his and mere passivity cannot create wife by the last codicil; and that an estoppel where the other party the principal sum of $60,000 had equal knowledge of the facts therein directed to be invested by and conditions in which their his executors for the benefit of respective rights originate. (Id.) | his wife must be raised from the


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rest and remainder of the estate, McKeon agt. Kearney, 57 Horo., after the satisfaction of the lega 350). (Leonard et al. agt. Davencies, although the income of this port, ante, 384.) rest and remainder had been given to her by the will. (Brown agt. 22. A misnomer or misdescription Cleveland, ante, 293.)

of a legatee or devisee, whether a

natural person or a corporation, 19. Where there is a real repugnancy will not invalidate the provision between the will and a codicil

if, either from the will itself or thereto, then the disposition made evidence aliunde, the object of the by the latter must prevail as the

testator's bounty can be ascerlatest expression of the testator. tained. (Id.) But there is no hostility between the codicil and will under con- 23. To identify a particular corporasideration which prevents the

tion as the one intended, where a construction above indicated, by

name other than the corporate which effect is given to the provi

name is used, parol evidence is sions of both will and codicil.

allowable to aid in determining (Id.)

the intention of the testator in the 20. Where a testator, by a final

use of the words in the bequest. codicil to his will, speaks of

(Id.) codicil or codicils to his will

24. In an action for the construction theretofore executed, and the ex

of a will the costs are in the dispression codicilsis repeated in

cretion of the court. (Id.) other parts of the same instrument, but no codicil is produced, other than the one last executed, and another one executed some

WITNESS. years before, and no evidence being adduced of the fact of any 1. A county asurer who appears other codicil having been exe

before a committee appointed by cuted:

the board of supervisors of a Held, that it must be accepted

county, in obedience to a subpæna as a fact that there were no other

issued by the chairman of such codicils except the two produced.

committee, in accordance with (Id.)

the provisions of section 3 of 21. Where a clause in the testator's

chapter 190 of the Laws of 1858, will read as follows: “Ninth. I

cannot be compelled to answer give and bequeath to the Ameri interrogatories concerning moneys can Bible Society, the American

in his hands as county treasurer, Board of Commissions of Foreign

when he claims that such answers Missions and the Home Mission might subject him to a criminal ary Society, the sum of $1,000 prosecution, or to a penalty or each:"

forfeiture. (Matter of Proceedings Held, 1st, that the Home Mis against Dickinson, ante, 260.) sionary Society, being an unin. corporated society at the time of 2. The witness is exempt from anthe making of the will, and at the swering because, by the Revised death of the testator, was not Statutes (vol. 3 of 6th edition, page capable of taking the bequest in 671, section 171) and the common question:

law, no witness can be required Held, 2d, that the statutes of to give any answer which will 1849, and any amendments there have a tendency to accuse himself of, relating to joint-stock associa of any crime or misdemeanor, or tions and suits against them, does to expose him to any penalty or not aid the defendant (Folloring forfeiture.” (Id.)

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