« ForrigeFortsett »
penses, and becomes a charge on decedent's estate.-In re application of Laird
et al. v. Arnold et al., 241. 22. Testator, prior to making his will, di
vided certain stock between his wife, two daughters and a grandson and took the necessary steps to vest title in them, with intention that such stock should not be considered advancements. Held, That they formed no part of the estate, and the donees were not to be charged with it as advancements. -De Caumont
et al. v. Morgan et al., 270. 23. An attorney who had a claim of testa
tor's to collect, on doing so drew a check to K.'s order which was collected after testator's death. K. was his agent, and credited the amount on his account with testator, leaving a balance due him. Held, No error, and that he could not be compelled to account for the check in any other way than such application. In re
accounting of Kellogg, 294. 24. The representative of an estate who em
ploys attorneys in one proceeding in the Surrogates Court is not precluded from employing other attorneys in another proceeding, and such attorneys can properly act in the subsequent proceeding without an order of substitution of attor
neys. -In re estate of Aaron, 324. 25. The surrogate cannot direct a temporary
administrator to pay out of the estate in his hands as such the costs of a successful contest over the probate of a will of the
decedent.-Id. 26. Costs should be awarded to the parties
to be paid by them to the counsel, and should not be awarded to and directed to
be paid directly to counsel.-Id. 27. A per diem allowance of costs for time
expended in preparation for trial is not permissible except in proceedings for an
accounting.--Id. 28. The per diem allowance in probate con
tests can only be properly made for time actually expended in court upon the trial.
-Id. 29. Plaintiff presented a bill for services to
deceased which defendants rejected and refused to refer. Action was brought and a much smaller sum recovered. Held, That plaintiff was entitled to costs ; that the fact that the account presented was much larger than the amount claimed in the complaint or recovered was not material.-Carter v. Beckwith et al., 373.
entered upon the accounting cannot be relieved from responsibility as executor on the ground that he has become and is chargeable only as a testamentary trustee by reason of the trust provisions of the
will.— In re estate of Cluff, 375. 31. Where an administrator furnishes in
entire good faith, out of the assets of the intestate, money to his co-administrator, the mother of minor children, next of kin, having no general guardian, to be used and in fact used by her for the purchase of necessaries for such infants, such administrator has equities which should be considered on a judicial settlement of his accounts, and he should be credited such sums as he has so contributed, when subservient to the necessities of the infants beneficially interested. — Hyland et al. v.
Baxter et al., 394. 32. The Surrogate's Court has jurisdiction
to consider and fairly adjust any equities existing between such administrator and the parties interested, and between such
parties themselves.-Id. 33. A rule which requiries the severance of
a family of minor children for the protection of a trustee in his accounts would be harsh and the consequences unnatural.
Id. 34. Unless special reasons exist, where a
trustee has furnished goods from his own store for infant beneficiaries such accounts for merchandise should not be allowed as against an infant's fund ; the rule should be applied with considerable
rigor.-Id. 35. Under $ 2662 of the Code it is not in
cumbent upon the surrogate, on an application for letters of administration, to issue citations to non-residents, but he may
issue letters immediately on presentation of the petition if the petitioner is otherwise qualified.-In re estate of Lib
bey, 457. 36. The failure to issue letters before the
non-resident petitions does not divest the
surrogate of his discretion.-Id. 37. A petition praying that administrators
be required to render an intermediate account, commencing : “ The petition of M. H., an infant, by I. G., her general guardian,” and signed “I. G.," and verified by him in the usual form, that he was general guardian, etc., is proper in form.
-In re estate of Hurlburt, 463. 38. A citation issued to the administrators,
and requiring them to show cause why the prayer of such petition should not be
granted, may be issued by the clerk.-Id. 39. Where a fund is left to executors for
the life of a beneficiary who was to have the use thereof, with remainder to his
30. An executor who after final accounting
omits to invest the funds with which he is charged as executor upon such accounting according to the trusts and provisions of the will as directed by the decree
ing him it was only for that month. The lease was renewed for a year and the policy renewed without further notice. Held, That there was a breach of warranty of occupation and that the policy was void.-Wolff v. The Osuego & O. Ins. Co., 418.
FORECLOSURE. See MORTGAGE, 1, 2, 5, 11, 12; PRACTICE,
23; RECEIVER, 1.
FORGERY. 1. Upon a trial for forgery in procuring the
discount of a note knowing that the names of the maker and indorser were intended to represent fictitious persons, but whom defendant represented to be living persons and stated their occupation and places of residence, it is competent for a witness for the prosecution, who made search for such persons in and about the locality of their residences, to testify that he made inquiries of persons living in said locality, and elsewhere, as to the existence and whereabouts of said maker and indorser, but was unable to obtain any information whatever in regard to them ; though he may not be permitted to state what said persons said in response to his inquiries. --The People v.
Jones, 541. 2. Reasons stated for denying motion for a
heirs, the duty of paying over the fund to the remaindermen on the death of the beneficiary is upon the executors, and they cannot, by any agreement with him, become discharged therefrom, nor can the beneficiary acquire any title to the fund by agreement with the executors.-Lee v.
Horton, 473. 40. The cause of action to recover such fund
does not accrue until the death of the
beneficiary.--Id. 41. When the appointment of an executor
has been revoked by a decree of the surrogate and an application is made for the appointment of an administrator with the will annexed and there are three residuary legatees one of whom is the disqualified executor, and the second refuses to serve as administrator, the surrogate has no discretion under subd. 1 of $2643, Code Civ. Pro., but must appoint the remaining residuary legatee such administrator; and the mere fact that the only asset of the estate remaining unadministered is a large claim against the husband of the said legatee which has been put in suit and resulted in judgment for defendant from which an appeal has been taken in behalf of the estate is not a sufficient reason to refuse to „so appoint the said legatee.-In re estate
of Place, 479. See DEPOSITIONS, 5, 7; LEGACY ; LIMITATION,
5, 6 ; PLEADING, 16; TAXES, 3, 7.
new trial on the ground of newly discovered evidence as to the reality of the existence of the persons named as maker and indorser of said note.--Id.
See TAXES, 4, 5.
1. In an action on a bond the answer set up
that defendant was induced to execute it by false representations, but did not admit its delivery. Held, That plaintiff had
the affirmative.-Benedict v. Penfield, 247. 2. Where a party has testified that he has
signed a paper relying upon certain representations, it is immaterial what he would have done if they had not been
made.-Id. See FRAUD, 5.
1. The fact that a conveyance covers all the
property of the debtor is not conclusive evidence of a fraudulent intent.--Bishop
v. Stebbins et al., 27. 2. To successfully attack a transfer on the
ground of fraud a fraudulent intent on the part of the purchaser must be shown.
-Id. 3. The transfers covered all the debtor's
property, and were made for an adequate consideration. Out of the purchase price was retained the amount of a mortgage on the premises and a note which the purchaser had endorsed, both of which he assumed, a note for property sold to the vendor, and also the sum of $1.000, for assuming the care and support of a brother whose support was charged on the vendor in the will under which he derived the property. Held, No evidence
of fraud.-Id. 4. Testator held a note of K. which he
delivered to K. without consideration. At that time testator had other assets ex
1. A policy described the premises as occu
pied as a saloon, tailor shop, dwelling and hall, and provided that it should be void if the premises were occupied or used so as to increase the risk, without consent, and that any renewal should be void if the change in risk was not made known. Plaintiff let the ground floor to the city as a lodging place for tramps, notifying the insurance agent, but tell
parties met at the dock, measured the lumber and agreed as to its amount. Nothing further was done and defendant never took it. Held, That the agreement
void under the statute of frauds. - Dedrick et al. v. Leonard, 575. See ASSESSMENTS, 7, 8; ATTACHMENT, 3, 4;
BANKS, 13; INJUNCTION, 1, 2; PARTNERSHIP, 2; REPLEVIN, 2-4 ; SALE, 2, 3, 5–9.
FRAUDULENT CONVEYANCE. See FRAUD, 1-3, 8, 9 ; PLEADING, 12, 13.
GIFT. 1. A defendant claiming property by a gift
causa mortis must establish the gift be
yond suspicion.-Lewis v. Merritt, 13. 2. Evidence held insufficient to establish a
gift causa mortis.—Halsted et al. v. Sher
rill et al., 159. See EXECUTORS, 10 ; FRAUD, 4.
GUARANTY. 1. The guarantors of a note, on which there
is a prior indorsement, undertake for the performance of each contract which is guaranteed. If either the maker or indorser shall pay the note the guarantor's liability ceases.-Phillips v. Plato, 313.
GUARDIANS. 1. A surrogate on settlement of the accounts
of a general guardian who has made advances for the support and maintenance of his ward has jurisdiction to determine, upon equitable principles, a claim for such advances out of the estate, and make an allowance in a proper case to the guardian by way of reimbursement for such advances.— In re estate of Windsor,
112. 2. The date of the filing in the Surrogates
Court of a general guardian's bond fixes the date of said bond when such date is not inserted in the instrument itself.
ceeding the amount of his debts. Held, On K's accounting, that the gift of the note was not a fraud on creditors, and must stand.-In re accounting of Kellogg,
294, 5. Where a sale of personal property is pro
cured by the fraudulent representations of the vendee, such sale is voidable at the election of the vendor ; and where such fraudulent vendee has sold the property the burden is on a purchaser to show that he is a bona fide purchaser.- Mather v.
Freelove et al., 343. 6. Where a purchaser, in fact, makes pay
ments to his vendor of a considerable portion of the purchase money expressed in a bill of sale, such fact would be sufficient evidence to establish his bona fides where there is no proof that such purchaser had notice of the fraud of his vendor in obtaining the property, but the evidence of a party to an action, supported by that of his wife, to the fact of such payment, though uncontradicted, is not
necessarily conclusive.-Id. 7. In such case it is not error for the court
to refuse to charge that there was no evidence to show “ that the purchase evidenced by the bill of sale was not the entire contract," as the jury have the right to inquire whether such instrument fully expressed the purpose of the parties thereto. It is not sufficient in an action of this nature that an instrument was
conclusive between the parties to it.-Id. 8. The complaint alleged the transfer of
property by S. to his wife with intent to defraud creditors, and demanded that the conveyances be canceled as to creditors; that the property be declared to belong to S., and the judgment a lien upon it. The answer denied fraud and alleged a consideration of $1,000. It was found that there was a mortgage of that amount which formed the consideration, and judgment was rendered that the deed should stand as security for that sum and that subject to it the judgment should be a lien. Held, Error ; that there was a violation of the rule that no judgment can be given a plaintiff on grounds not stated in his complaint.—Truesdell v.
Sarles et al., 378. 9. A valuable consideration, though inade
quate in amount, is sufficient to sustain title in the grantee.-Id. 10. The parties made an oral agreement in Vermont under which plaintiff was to cut for defendant eight cords of wood at $14 per cord suitable for ax helves from trees then growing, and pile the same on a dock on Lake Champlain. Nothing was paid at the time. The wood was collected during the following winter and piled as agreed ; and subsequently the
Perkins v. Stimmel et al., 315. 3. Although the penalty of the bond of a gen
eral guardian may have been inserted in the blank by a clerk in the surrogate's office, said penalty is fixed by the surrogate within the meaning of $ 2830, Code Civ. Pro., if the bond is afterward duly filed, and upon it and the other proceedings in the case the surrogate in due form issues letters of guardianship in which the due execution and delivery of such bond is
recited.-Id. 4. An action may be maintained by the
guardian of the estate of an infant in his own name as such guardian to recover damages for the breach of the condition of the bond of a former general guardian of such infant, although the better practice is to bring such action in the name of
7. Where the public has only an easement in
a street, the owner of the fee retains his exclusive right in all mines, quarries, etc., for all purposes not incompatible with the right of way. So held, where defendants dug pits below the grade of the street and removed gravel to use on other parts of the street, intending to fill the pits with earth.-Roberts et al. v. Sadler et al., 282.
the infant by his guardian.-Id. 5. An accounting by a general guardian will
be required before an action can be maintained for a breach of the condition of bis bond when such an accounting will be necessary or availing to establish the extent of the sureties' liability and is practicable to be had; but where it is a proceeding of no use or advantage to the sureties, and can only result in subjecting them to the burden of a double litiga
tion, it will not be required.—Id. 6. The general guardian of an infant who has
a claim for the recovery of certain property has power to retain and compensate attorneys and counsel in necessary actions to enforce said claim, and a contract of that character made by the general guardian with an attorney, if reasonable and fair and beneficial for the infant, will be sustained and enforced.-In re applica
tion of Hynes, 427. See TRUSTEES, 9-11.
1. A person who signs an application to open
a highway is not disqualified as a juror under the statute as a person “interested
in the land.”—Buckley v. Drake et al., 71. 2. In an action for labor performed upon a
highway plaintiff, upon proving the number of days he labored, is presumptively entitled to the statutory compensation, and is not obliged to prove to the value of his labor.- Watrous v. Shear,
164. 3. The State may confer upon a municipal
corporation the power to borrow money if it does not otherwise exist, and what it can itself do in the matter of laying out, opening and grading streets and avenues it can authorize the local legislature to do with all its own discretion.
Hubbard v. Sadler et al., 267. 4. The grant of legislative power contained
in Chap. 482, Laws of 1875, and Chap. 554, laws of 1881, was not exceeded by the
action of the supervisors in this case.-Id. 5. Notice of defects in a highway to one com
missioner is sufficient to charge the board with notice.- Malloy v. The Town of Pel
ham, 277. 6. Proof that the commissioners had in their
hands a certain amount unexpended at the end of the year, and that the repairs in question would amount to much less, is sufficient to show them in possession of funds.-Id.
HUSBAND AND WIFE. 1. It seems, that a husband and wife can
not form a copartnership and carry on business together as copartners.-Snau v.
Caffe et al., 296. 2. A deed of conveyance from a wife to a
husband is void at law.-Blaeski et al. v.
Blaeski, 321. 3. To support such a deed in equity it is
necessary that a sufficient valuable consideration should be shown; it is not enough that such a consideration be ex. pressed in the deed, but the court will take into consideration the facts and cir. cumstances under which it was executed
and delivered.-Id. 4. Where a husband has forced his wife to
leave his house and has thereafter refused to provide for her, he is liable for necessaries furnished to her in good faith and in ignorance of the pendency of an action for separation, even to one who was forbidden by him to trust her on his account, and this liability continues up to the time of actual payment of alimony.-- Minck
v. Martin, 435. 5. It seems. That there is now no occasion
in this State for joining the husband with his wife in an action for her torts and that a husband is not liable for his wife's personal torts.- Mangum et al. v.
Peck et al., 504. 6. Where a wife began an action for divorce
and thereafter an agreement was made between the parties that the action be discontinued; that thereafter they live apart, and that the husband pay the wife $3,000, and such agreement was carried out and subsequently the parties lived together as husband and wife and the latter lent the husband the $3,000. Held, That the contract was void and that she could not recover the money.-Friedman v. Bierman et al., 526.
See DIVORCE, 3; EXECUTORS, 10; PLEAD
ING, 12, 13,
INDEMNITY. 1. An undertaking to save a sheriff harm
less and indemnify him from all harm, damage, suits, judgments, etc., is an in
See EXECUTORS, 15; GUARDIANS.
demnity against liability by judgment as
Dubee et al., 84.
covery of a judgment the cause of action
3. A judgment obtained against the sheriff
by consent is only presumptive evidence
upon a sale of goods to plaintiffs, executed
to land has been obtained by fraud an
Becker et al. v. Church, 134.
had restraining summary proceedings
taken by virtue of such instrument.-Id.
junction on the pleadings as matter of
Ward RR. Co., 556.
GRAPH COMPANIES, 4.
6; LEGACY; TRUSTEES, 8.
See ASSIGNMENT, 1.
1. For the purpose of determining the suffi-
ciency of an indictment containing sev-
People v. Dimick, 236.
counts to have been committed in a dif-
1. Before a judgment of the court, stand-
can be properly adjudged
fact. --Van Etten v. Hasbrouck, 283.
be so clearly preponderating that the fact
is not error for the court to refuse to com-
count it will proceed.- Id.
pears that the name of the prosecutrix
The People v. Johnson, 491.
such amendment do not violate $ 6, Art.
1, of the Constitution.-Id.
from defendant as agent and gave him a
judgment.-Bryan v. Viele, 299.
set aside a satisfaction and reinstate a