Digest. charge the defendant with having wrongfully set fire to it. (Id.) 4. The presumption that a deed which has been acknowledged or proved was delivered on the day of its date, is not affected by the statute. (1 R. S. 738, § 137.) (Id.) WILLS. 1. The question of fact, whether II. P., deceased, possessed that moderate degree of reason and understanding which is required to enable one to dispose of his property by will, determined in the negative. (Delafield agt. Parish, 25 N. Y. R. 9.) 2. Assuming it to be possible that a testator may manifest sufficient capacity to revoke an existing will, and yet be incapable of demonstrating (although he might possess) sufficient capacity to support the complex provisions of a new will, this notion cannot be so applied to a codicil as to render it effective as the revocation of a will, while void as an affirmative testamentary disposition. (Id.) 3. The statute (2 R. S., p. 64, § 43, et seq.,) disposes of the whole doctrine of implied revocations. No expressed intention or wish to revoke a will is effectual, either in itself or as auxiliary to other circumstances, unless authenticated in the modes prescribed by the statute for the making and revocation of wills. (Id.) 4. The person propounding an alleged testamentary paper must prove, not only the execution and publication of the instrument, but also the mental capacity of the testator; so that if, upon consideration of the evidence on both sides, the court is not satisfied that the supposed testator was of sound and disposing mind and memory, probate must be denied; but, (Id.) 5. At common law, and under our statutes, the legal presumption is, that every man is compos mentis; and the burden of proof that he is non compos mentis rests on the party who alleges that an unnatural condition of mind existed in the testator. He who sets up the fact that the testator was non compos mentis, must prove it. (Id.) 6. In law, the only standard as to mental capacity in all who are not idiots or lunatics is found in the fact whether the testator was compos mentis or non com pos mentis, as those terms are used in their fixed legal meaning. (Id.) 7. Such being the rule, the question in every case is, had the testator, as compos mentis, capacity to make a will; not, had he capacity to make the will produced. If compos mentis, he can make any will, however complicated: if non compos mentis, he can make no will-not the simplest. (Id.) 8. The opinions on that subject of medical men, as well actual observers as experts, are mere evidence, and are to be produced in court, and under oath, as other evidence is. (Id.) The ation of the testator that the instrument in his will, is to make it certain that he is not procured to execute a will under the supposition that it is some other kind of instrument. fact that he knew it to be his will may, therefore, be established against the testimony of all the subscribing witnesses. (Id.) 12. A will directing the residue of the estate to be divided between his brother William, and the children of his deceased sister Ellen, and the daughter of his brother John, in equal proportions, share and share alike, the distribution is properly made among all the legatees per capita-the brother taking the same share with the nephews and nieces. (Lee agt. Lee, 39 Barb. 172.) 13. Where a testator directed his executors to sell certain land, convert it into money, and invest it until the youngest child shouli become 18 years of age, and then distribute the same among his children: Held, this was a case of equitable conversion, and the estate became impressed with the character of personal property, and was to be distributed as such. (Johnson agt. Bennett, 39 Barb. 237.) 14. A declaration by a testator in presence of two witnesses "that this Digest. is my last will and testament," made | before he signed the will, instead of afterwards, held a compliance with the statute. The apparent injustice of a testator to members of his family, although evidence proper on the question of his soundness of mind at the time of executing the will, is only a circumstance; and has never been regarded as sufficient alone to invalidate the will. (Gamble agt. Gamble, 39 Barb. 373.) 15. Where a tenant for life of real and personal estate sells a part of the personal property, receives the money therefor, and loans the same, devisees in remainder cannot sue for the money, after the death of the tenant for life; there being no privity between them and the borrower. (Dickey agt.Dickey, 39 Barb. 386.) 16. Provisions of a will which converts the real estate into personalty, from the death of the testator; and that, considered as personalty, the share of one of the daughters, who was a married woman, would be and remain her sole and separate property, not subject to her husband's control during her life, and within her absolute power of disposal by will. That if she did not see fit to dispose of it by will, the provisions of the Revised Statutes, (3 R. S. 5th ed. 185, § 86) would attach to it upon her death, and thereby the husband would become the absolute owner. (Irish agt. Huested, 39 Barb. 411.) 17. When a legacy is given to a child or See EXECUTORS and ADMINISTRA- See WITNESS, 6. WITNESS. 1. Under the act of 1840, the examination to obtain the deposition of an involuntary witness, on a motion in this 66 2. The Revised Statutes expressly authorize courts of record to punish for contempt all persons summoned as witnesses, for refusing or neglecting to obey such summons, or to attend or be sworn or answer as such witness." And where the witness who attends before the court in pursuance of such mandate, and is duly sworn, the court has power to require him to answer proper questions, on pain of contempt, whether the examination is conducted by the judge personally, or by counsel in his presence. (Id.) 3. The limit of a cross-examination of a witness is within the discretion of the judge conducting it. (Plato agt. Kelly, 16 Abb. 188.) 4. The neglect of a party, at whose instance testimony is taken conditionally, to file the original deposition within ten days, as required by statute, may be remedied by allowing him to file it nunc pro tunc. (Bank of Silver Creek agt. Browning, 16 Abb. 272.) 5. A notice that the defendant would be a witness in his own behalf "as to all the alleged facts in the plaintiff s complaint, does not specify the points as to which he was to be examined, as required by the Code in force in 1857. (Hinds agt. Barton, 25 N. Y. R.544.) 6. On an issue of law between the heir at law and a devisee of a decedent, as to the due execution of a will by the decedent, and as to his competency to execute the same, the question being between those two claimants, which is the best entitled to the property, the one by descent, or the other by purchase; the devisee is not a competent witness to testify to transactions between the testator and himself, tending to establish the will. (Lee agt. Dill, 39 Barb. 516.) OF CREDITORS. 90 CHALLENGE OF JUROR. COMMISSIONERS OF HIGHWAYS. 346 Assessment of damages by the commis- ment.. COMPLAINT. Alleging performance of a special con- Index. 97 There is no limitation to the number of term fees in the court of appeals. 163 Are allowed on every certiorari, by sta tute....... 450 count upon the implied assumpsit of the other party to pay the stipulated price, and is not bound to declare specially upon the agreement.... Where a complaint shows upon its face that the action was brought against two trustees, the objection that a third Statute regulations respecting office trustee should have been made a defendant is waived, if not taken by de murrer or answer...... 97 An allegation in, not denied by the answer, stands admitted of record.. 213 When allegations in, will be considered for false imprisonment, and not malicious prosecution.... CONTEMPT. COUNTY CLERKS. hours must control the business transacted in the office and regulate the liens of judgments docketed out of office hours... 180 D. 273 DISCOVERY OF BOOKS AND PAPERS. When the court will punish for contempt. an involuntary witness, whose deposition is required under the act of 1840. 254 CONSTITUTIONAL LAW. When the legislature of the state, in granting a bridge franchise, does not make such a contract as to be objectionable to the constitution of the United States, by impairing the obligation of contract, where it grants a similar franchise to another..... 124 The President of the United States has no power under the United States constitution to arrest and imprison civilians without due process of law.. 33 Questions discussed in dissenting opinions in court of appeals in the Chenango Bridge case. CONTRACT. 297 May be ordered after issue joinedwhat is necessary to be shown.... 177 DIVORCE. When an answer of another action pending for the same cause, insufficient. 187 E. EVIDENCE. If an offer of evidence contains any matter not admissible as evidence, the whole may be rejected.......... 97 Where the contract declared on is in writing, no condition can be engrafted upon it by parol evidence........ 97 Of a judgment as a bar, when proper to show by proof aliunde that it was not rendered on the merits.......... 418 When hearsay evidence is admissible to show the death a person......... 244 It is competent to show by parol the grounds on which a verdict or judgment was rendered when they do not appear by the record..... 481 Offered on a question of a breach of warranty when improperly excluded. 491 An extra allowance will not be ordered When metropolitan policeman subject to on the judgment, where an attachment has been issued, if the attachment has been vacated pending the action... action for, on an improper arrest. 273 FELON. 95 A person having been convicted of a |