ESTOPPEL. 1. Where a testator devises and bequeaths

portions of his property to a beneficiary under his will, and also by his will devises and bequeaths a residuary estate to other beneficiaries which necessarily embraces- property claimed by the testator, but in which the former beneficiary owns or claims to own an interest, the acceptance by such beneficiary of the provisions of the will, with knowledge of the fact that the testator has thereby disposed of the property in which said beneficiary claims an interest, will be held to be an election by him to take under the provisions of the will instead of asserting and pursuing his claim to the property devised or bequeathed to the residuary legatees, and he will be estopped from thereafter enforcing said claim.-Haack v. Weicken et al., 269.

upon the crime for which he was arrested. It seems that the detective had suggested a confession. The prisoner asked what he was “ to get out of this thing." To which the detective answered that the only benefit to be gotten out of the thing by the prisoner was the benefit that any State's witness would get. On reaching the district attorney's office the detective said if the prisoner wanted to make a statement he could, but he must use his own judgment. The district attorney replied that any statement must be voi. untary. It did not appear that he knew of the detective's statement of the benefit a State's witness would get. The prisoner was not allowed to communicate with counsel before making his confession. Held, That within § 395, Code Crim. Pro., the admission of the confession against the prisoner was error.-The People v. Kurtz, 05.


EVIDENCE 1. Certain evidence held improper under $

829 of the Code of Civil Procedure.--Lewis v. Merritt, 13; Chaffee v. Goddard, 81.

7. The prisoner asked the court to charge

that if the jury found the confession was made because of the promise of immunity they must reject it. This was refused. Held, Error.-Id.

2. Where an assignment is not followed by

change of possession the declarations of the asssignor are admissible in evidence.

-Jellenick v. May et al., 22. 3. Corporate books are not only evidence of

corporate acts when those need to be proved; but are to some extent evidence against the stockholders, who are chargeable with knowledge of their contents.

Blake v. Griswold, 33. 4. Evidence admissible on question of value.

--Id. 5. In an action for an accounting between

one partner and the personal representative of his deceased copartner, plaintiff, after testifying to sales of the firm property and the receipt of the proceeds by him, was asked, * Of all the whiskey sold, what portion of the returns have you retained ?” This question was objected to by defendant, but the objection was overruled. The witness answered “one-half.” A cross-examination developed the fact that witness claimed that he had paid deceased half the returns, and that, hence, he himself had retained only the other half. Defendant then moved to strike out the evidence and his motion was denied. Held, Error ; that the evidence was incompetent under S 829, Code Civ. Pro. --Mills v. Kernochan,

54. 6. The prisoner was traveling under arrest

with a detective, employed by the district attorney, who conversed with him

8. In an action for partition the real issue

was the validity of a will. There was a statement in the will that an heir and devisee had received $285, and that this she was to be charged with. The statement was read to her and, upon the question of the memory and testamentary capacity of the testator, she was asked what she knew about that. She answered that she knew nothing of it ; that she never had it. Held, That the evidence was improper under Code, $ 829.- Doughty v.

Doughty et al., 79. 9. On cross examination, after a witness

had testified that he had once been arrested, he was asked what the charge was. Under objection he answered. Held,

Error.- Smith v. Mulford et al., 85. 10. A witness cannot be asked as to accusa

tions against him, but, within the discretion of the court, may be asked as to specific acts which impair his moral char

acter.-Id. 11. Interest of a party in the sense conveyed

by S 829 of the Code means a direct legal interest in the judgment at the time he is sworn. When a person takes a title, to evade responsibility in any way, in the name of another, that other owns the title absolutely by statute, if his interest is not evidenced by writing, and if no such writing is produced or shown the presumption is in favor of the competency without proof of that fact.-Gour

lay et al. v. Hamilton et al., 117. 12. Photographic scenes are admissible in

evidence as aids to the jury in applying S 829 of the Code of Civil Procedure.Blaeski et al. v. Blaeski, 321.

22. The fact that a vendor charged the

goods sold on his books to the agent is not conclusive as to the question to whom credit was given ; but he may explain his system of book-keeping, and show that credit was intended to be given to the

principal. --Van Fleet v. Ketcham, 338. 23. The fact that the vepdee was indebted

when he left, and the manner of leaving, are competent evidence on the question of motive in making a bill of sale.

Mather v. Freelove et al., 343. 24. Where evidence of the character of a

witness has been introduced for the purpose of impeachment, the truth or falsity of the reports testified to is not in issue.

It is a question of reputation only.--Id. 25. In an action against an executor to re

the evidence, whe it relates to persons, things, or places.--The People v.

Buddensieck, 125. 13. Chapter 36, Laws of 1880, allowing a comparison of hands, has not changed the rule that none but experts can testify as to such matters --McKay et al. v. Lasher

et al., 165. 14. Statements of a subscribing witness to

a deed by whose testimony its execution was proved that he did not know the grantor when the deed was executed and had nothing to do with the transaction, are inadmissible where the subscribing witness is not called at the trial and first asked whether he has made such state

ments. --Id. 15. Upon a criminal trial evidence that de

fendant committed another crime on another occasion is not competent.--The

People v. O'Sullivan, 196. 16. In an action to recover for the death of

plaintiff's intestate evidence of declarations of deceased, made after the accident, and while he was being conveyed away, as to the manner in which the accident happened, were admitted. Held, Error.-Martin v. The N. Y., N. H. & H.

RR. Co., 197. 17. An exception to the admission of testi

cover for services rendered to his testator, evidence that plaintiff had not been paid is inadmissible under $ 829; but such evidence is immaterial where no evidence of payment has been given on the part of the executor.--Lerche v. Brasher, 417.

mony is not waived by attempting to disprove the matters testified to, or to prove facts inconsistent with them.--Id. 18. After a witness had been fully exam

ined and cross-examined, he was, at a later period, sought to be questioned generally as to matters before testified to by him. The objection was taken that the matter had been fully gone over by the witness on his former examination. The objection was sustained. Held, That in this ruling there was no error, the ruling being one within the discretion of the referee.--Holcomb v. Campbell, 265. 19. A party who sits by during the recep

tion of incompetent evidence without objecting, and thus taking a chance of advantage to be derived therefrom, has no legal right when he finds it prejudicial to him to require it to be stricken out.--De

Caumont et al. v. Morgan et al., 270. 20. Opinions of physicians, when admissi

ble as evidence. --Tisdale v. The D. & H.

C. Co., 308. 21. When the title of the wife is obtained

from a third party, who had obtained title from the husband and afterward conveyed to the wife, an heir-at-law of the husband is competent to testify as to a conversation between himself, the wife and such deceased husband; such evidence is not within the inhibition of

26. A transcript from a register's office of a

power of attorney to convey real estate is

admissible.-Id. 27. A question,

“What was done by you, except of course personal transactions and communications with the deceased, from the time you first commenced your labor down to his death," is proper, and if objectionable evidence is offered under it specific objection should be made and motion made to strike out the objection

able parts.--Id. 28. Plaintiffs agreed in writing to do the

plumbing in eighteen houses then in the course of erection. This agreement was not made with the owner of said houses, but with one B. who had charge of the plumbing thereof, or was the person employed to do the work. By said agreement B. was to pay plaintiffs $325 per house. When the work was about onethird completed B. died, and thereupon defendant, who was the owner of the houses, agreed to carry out the

agreement made by B. with plaintiffs. This action was brought to recover a balance alleged to be due under said agreement. Upon the trial defendant attempted to prove that the work was to be done in accordance with certain specifications which he claimed formed the basis of the agreement between plaintiffs and B., but which were not referred to therein, and that the work was not so performed. This evidence was excluded as varying the written contract between plaintiffs and B. Held, Error. That defendant was not a party or privy to the said contract, and that therefore the rule invoked did not apply to him.-- Norton et al. v. Keogh,

Sufficient to allow the receipt to be read in evidence.-The Robinson Consolidated

Mining Co. v. Craig et al., 512. 36. A party has a right to contradict his

own witness by proving a fact material to the issue to be otherwise than as sworn to by him, even when the necessary effect is to impeach him.-Becker et al. v.

Koch, 538. See ABDUCTION; ASSAULT, 2, 3; BANKS, 4;



1. The objection to the power of the excise commissioners of the city of N. Y. to revoke a license founded upon the ground that the summons to appear before the commissioners was not served upon the licensee himself, but upon the person who, in his absence, was found in the possession and control of his establishment, is obviated by the appearance of the licensee by attorney upon the return of the summons and moving for, and obtaining an adjournment of the proceedings without raising the objection of the improper service.The People ex rel. Kimball v.

Houghton et al., 15. 2. When all of the excise commissioners of

the city of N. Y. have notice of the time and place to which a proceeding to revoke a license granted by them has been ad. journed by participating in the making of the order for the adjournment, it is no objection to the order revoking said license made at the adjourned hearing that it was made by two of the said commissioners in the absence of the third.

Id. 3. The statute does not require the same he has the means of preventing it by
proper care, he becomes liable for a re-
sultant loss.-Wilmerding v. McKesson,

430. 29. In a criminal trial the prosecution on

cross-examination examined one of defendant's witnesses as to new matters not touched in the direct examination. Held, That as to such new matters the prosecution had made the witness their own and could not contradict her.-The People v.

Holfelder, 450. 30. Under the circumstances of the case,

Held, That defendant was not bound by his failure to contradict statements which may or may not have been made in his

presence and within his hearing.-Id. 31. The disqualifying interest under $ 829

must be not merely in the question involved, but in the event of the particular action pending; such that the witness will gain or lose by the direct legal effect and operation of the judgment, or that the record will be legal evidence for or against him in some other action.-Nearpass et al. v. Gilman, 459. 32. A general agent of the maker of a note

is not precluded by $ 829 from testifying that the note has been paid, nor is an in. dorser who is not a party precluded from testifying on behalf of defendant where it is not claimed that the note had been

protested.-Id. 33. Evidence of a deceased witness taken

upon a former trial is admissible.--Odell

v. Buckhout, 500. 31. After the patient has once removed the

bar of secrecy and made the privileged information public the right to further object to its admission is waived; so held, where plaintiff on a previous trial had called the physician and his testimony was given in her behalf, and the same testimony was objected to by her on this trial.-McKinney v. The Grand St., P. P.

& F. RR. Co., 503. 35. In an action against sureties for rent, to

reduce the amount claimed, defendants
offered in evidence a receipt for a portion
of said rent signed by one C., plaintiff's
agent at the mines, and, to prove the sig-
nature to such receipt, defendants called
the former vice-president of plaintiff,
who testified that he had never seen C.
write, but had seen his signature annexed
to various communications sent by him
to the company in the ordinary course of
its business upon which the company
had acted and bad thus acquired a gen-
eral knowledge of his handwriting, and
that the signature to the receipt offered
in evidence was the signature of C. to
the best of witness' knowledge. Held,

strictness by way of proof to support an
order revoking a license made by the ex-
cise commissioners of the city of N. Y., in
a proceeding before them for that purpose,
as is required in an action or special pro-
ceeding in court. Such a proceeding
before the commissioners is designed to
be summary, and all that has been re-
quired is that the commissioners should
become satisfied of the existence of the
fact necessary to warrant a revocation of
the license by such reliable information
as they may be able to obtain establish-
ing it to a reasonable certainty.-Id.
See N. Y. CITY, 5.

2. The co-executor hypothecated securities

for loans to himself and his firm. Held,
That defendant was not liable for the

waste thereby occasioned.-Id.
3. Where there was no wrongful intent on

the part of the executor he is not liable
for legal interest; but at most should be
charged with interest at five per cent.-

4. When it appears from the testimony of

a witness other than plaintiff in an action
to recover the value of certain bonds
from the executors of a person to whom
it is claimed plaintiff gave such bonds for
safe keeping, that on a certain day plain.
tiff delivered to testator an envelope ap-
parently containing bonds, it is compe-
tent for plaintiff to testify that previous
to that time she had in her possession a
certain number of bonds of a specified
value contained in said envelope and that
she never had them in her possession
thereafter. That is an independent fact
to which plaintiff is not precluded from
testifying by $ 829, Code Civ. Pro.-Price

v. Brown et al., 43.
5. When on a trial before a jury evidence

is erroneously admitted in violation of S
829, Code Civ. Pro., but is subsequently
stricken out by the court, the judgment
will not be reversed on account of such
error, if the improper evidence was mere-
ly cumulative and the fact sought to be
proved was fully established by compe-
tent evidence.- Id.

6. In an action of the nature above men-

tioned plaintiff is not entitled to recover
interest unless defendant's testator had
mingled plaintiff's property with his own,
and the amount of interest upon the
bonds is limited to the value of the cou-
pons up the time of their payment.-

7. Under $ 2606 of the Code as amended by

Chap. 399, Laws of 1884, the executor of a
decedent who was himself in his lifetime
an executor may be required to account
for the property of the estate which came
to the hands of such decedent as such ex-
ecutor. The representative of a deceased
executor may be required under said sec.
tion as amended to account as fully for
the administration of the deceased exec-
utor as he would have been required to
do had his letters been revoked in his

life time.-In re estate of Fithian, 64.
8. The surrogate has power under said ş

2606 of the Code to require the delivery
by the representative of a deceased erec-
utor of only such trust property as has
counting was entered, the surrogate can-
not properly proceed with the account-
ing, and inust direct its dismissal.-In re

1. An order made by a court of competent

jurisdiction, staying the sheriff from any
interference with the property of a judg-
ment debtor, suspends during its continu-
ance the running of the sixty days for
executing the process. The Ansonia B.

& C. Co. y. Conner et al., 89.
2. On application for leave to issue execu-

tion plaintiffs' affidavit stated the date of
judgment as the 1st, instead of the 5th;
on motion to vacate the order granting
leave, the motion was denied and plain-
tiffs given leave to file an affidavit giving
the correct date nunc pro tune. Held,
That the court had power to permit the
correction.-Sudlow et al. v. Mead, 160.

3. Where a redemption is made on Satur-

day, a second redeeming creditor is in
time if he redeem on Monday, and does
not lose his right by failing to exercise it

on Sunday.-Porter v. Pierce et al., 379.
4. If a senior judgment creditor redeems

lands sold under a junior judgment, such
redemption operates as payment of the
senior judgment, provided the lands are
of sufficient value to pay the amount of
the bid and the senior judgment.-Ben-

ton v. Hatch, 392.
5. Where a party is on the limits under ar-

rest on a judgment for costs only, the
attorney for the judgment creditor can
give a valid order for his discharge. -

Daris v. Bowe, 455.
6. Where a judgment against defendant

was entered by default, and on his appli-
cation he was allowed to come in and de.
fend on the condition that "the judgment
stand as security, but no execution to
issue thereon till after the determination
of the action,” the judgment so entered
is a final judgment on which an execu-

tion may issue.-Flagg v. Cooper, 501.
7. Where in such case, after a trial, a sub-

sequent judgment is entered against de-
fendant for a larger amount than the
judgment on the default, such second
judgment does not have the effect of va-
cating the former judgment, and execu-
tion may issue on such former judgment
without further order of the court.-Id.


1. If an executor is merely passive and sim-

ply does not obstruct the collection or re-
ceipt of assets by his associate, he is not
liable for the latter's waste; but where he
knows and assents to such misapplica-
tion, or negligently suffers his co-execu-
tor to receive and waste the estate, when

estate of W'ood, 127.
14. The only authority for the voluntary in-

tervention in proceedings for executors'
and trustees'accountings of any person or
persons other than the petitioner or peti.
tioners and the person or persons caused
by him to be cited rests upon SS 2731 and
2810 of the Code of Civil Procedure, and
the sections referred to do not sanction
such intervention until “the hearing."-

15. Any person may properly institute pro-

'ceedings on behalf of an infant benefi-
cially interested in the estate to require
executors or administrators or the trus-

tees thereof to account.-Id.
16. Testator's will directed and authorized

his executors to continue his business of
brewing, and then divided his whole es-
tate in parts, giving each share to his ex-
ecutors in trust to pay over the residue
or net proceeds to the beneficiary named.
Held, That the losses incurred in the
business by bad debts, etc., were prop-
erly charged by the executors to the life
tenants. - In re settlement accounts of

Jones, 206.
17. Defendants, before qualifying, took a

deed in their own names, but for the bene-
fit of the estate, of certain premises for
which testator made a contract in his
lifetime. They afterward sold it and took
a mortgage to themselves as trustees and
upon foreclosure there was a loss. The
property was situated in another State.
Held, That, in the absence of proof of bad
faith, they were not individually liable
for the loss. - In re Denton et al. v. San-
ford et al., 213.
18. The surrogate has jurisdiction to com-

pel an executor who has been removed to
account and pay over the moneys in his
hands to his co-executor.-In re estate of

Hood, 229.
19. An order to account, whether prelim-

inary or final, is brought up by an appeal
from the final order on the accounting: -

20. Appellant took exceptions to the admis-

sion of the order revoking his letters; to
a ruling sustaining objection to a question
as to whether he had acted as executor
since his former accounting and to a
question as to what he had done with the
securities left in his hands at that time.
Held, That the exceptions were without

21. An administrator having purchased a

come to the hands or control of the rep-
resentative of such deceased executor,
and the trust property can only be re-
quired under said section to be delivered
to a successor newly appointed of such

deceased executor.-Id.
9. Where the claim presented to an exec-

utor is based on complicated accounts,
and the judgment rendered is for a much
smaller sum than the original claim,
costs should not be allowed against the

executor.-Johnson et al. v. Myers, 75.
10. A certain sum was deposited in bank to

the joint account of decedent and his
wife (administratrix). On her account-
ing the referee found that the adminis-
tratrix was chargeable with but one-half
of the deposit in the absence of any evi-
dence of the respective proportions of
each. Held, That the exception to such
finding must be overruled. That if the
referee erred at all, it was in favor of the
contestants, the courts having held that
a deposit of moneys in the joint name of
husband and wife with the privity of the
husband must be taken as prima facie a
gift of such money to the wife, and that
when such deposit had been left undis-
turbed by the husband the money became
on bis decease the property of the wife.

-In re estate of Brooks, 104.
11. Moneys paid under the by-laws of chari-

table associations to the “widow" or
“family"of a deceased member by virtue
of the membership of the decedent in
such associations are to be controlled in
their disposition by the by-laws of such
associations, and do not become assets of
the estate of the decedent. The admin-
istratrix of the estate, however, is not
entitled to reimbursement out of the es.
tate for moneys paid as funeral expenses
where for such expenses she had been
reimbursed by moneys received by her
for“ funeral expenses” from such benevo-

lent associations.-Id.
12. While the mere fact that an executor,

administrator or trustee has without law-
ful authority borrowed funds entrusted
to his charge does not ipso facto call for
his removal, yet when his conduct has
been such as to endanger the trust prop-
erty or to show a want of honesty, or of
reasonable fidelity, he must be pro.
nounced “unfaithful to the due execu-
tion of his office" and must be accord.
ingly deprived of it.-In re estate of

Petrie, 122.
13. Where the applicant for an accounting

consents to a discontinuance of the pro-
ceeding and all the parties named in the
order directing an accounting have con-
sented to a discontinuance or released
their interests in the estate except one who
has died since the order directing the ac-

monument for his intestate, the debt is to
be regarded as a part of the funeral ex-

« ForrigeFortsett »