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agreed to be paid by the failing party.Id.

See NUISANCE.

WAIVER.

See APPEAL, 2, 5, 6, 15; ATTORNEYS, 1;

COSTS, 13.

WARRANTY.

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1. Evidence that the seller of a horse stated,

in reply to the buyer's question, that "I have drove him single and he drives all right,” is insufficient to establish a warranty as to the future conduct or behavior of the horse, or to authorize the submission of the matter to the jury.-McMaster

Smith, 205. 2. Where a particular kind and quality of remainder of my property, both real and personal, I give, devise and bequeath to the following parties, namely: $5,000 to Katie Tems and the balance to my patural heirs." Held, That in the absence of anything in the context of the will, and of any circumstances of the testator or the state of his family from which it can be inferred or suspected that by his use of the word "natural" he designed either to enlarge or restrict the meaning which would have been accorded to the word heirs, that the word “natural” should not be permitted to affect the meaning which would have been accorded to the word heirs if used alone. In re estate of

there was no variance, and that she was entitled to recover for the injury to the freehold, - Stilwell v. Zinsser, 208.

2. The complaint alleged a partnership under

a verbal contract by which plaintiff was to take charge of the business and receive a share of the profits. The answer denied the partnership. On the trial plaintiff failed to prove a partnership, but was allowed to recover for services under the contract. Held,

No error. - White v. Gaines, 361.

VENUE,

seed is ordered, the law assumes that the seed furnished is to be such as ordered, and that it will produce the vegetable named ; and no express warranty is need

there being an implied warranty that the seeds furnished are of the kind and quality ordered.-Gubner v. Vick et al., 356.

ed;

1. When a general assignment for the benefit

of creditors includes real property, an action to set aside said assignment as fraudulent must be brought in the county in which said real property is situated; and, if it is brought in another county, the place of trial will be changed to the proper county upon the application of defendant notwithstanding that plaintiff stipulates that he will not attempt to reach the real estate of the assignors assigned to the assignee, or make any claim of title or interest therein or there

to."—Wyatt v. Brooks et al., 281. 2. An action brought by a junior mortgagee

to compel a prior mortgagee to assign his mortgage to the former upon payment of the amount thereby secured is not an action brought to procure a judgment “affecting" a lien upon, or other interest in real property, within the meaning of s 982 of the Code, requiring such actions to be tried in the county where the land is situated ; but is simply an action to compel a transfer of such lien to plaintiff, and may be brought in the county where he resides.The Yates Co. Nat. Bank v. Blake, 551.

WILLS.

VILLAGES.

1. Trustees of a village who have entered

into a contract for laying a sidewalk may therein fix a sum which shall be paid by the failing party, and upon the failure of the village to perform the sum may be recovered.--Parr v. The Village of Green

bush, 333. 2. Where the village had no seal and the

trustees entered into a contract containing the word "covenant,” to which they signed their names and affixed seals, Held, That the instrument was under

seal.-Id. 3. The village failed to furnish certain materials, but allowed plaintiff to furnish them; this was contrary to the charter, and in another action it was held that for these plaintiff could not recover. Held, That that judgment was not a bar to this action, which wa sfor the sum

1. Testator bequeathed one-third of his es

tate to his sons in trust to invest and receive the income for the life of his wife and directed them to pay her out of said income a sum sufficient, with her separate income and dower, to make her income $12,000, and subject to said trust gave the principal to said sons. The balance of his estate he bequeathed to his sons subject to annuities which were stated not to be a charge on real estate. Held, That the amount directed to be paid to the widow was not a charge on the real estate and that a deed signed by the sons individually and release of dower by the widow were sufficient to convey the fee.-Bangs

et al. v, Hill, 9. 2. Testator devised the residue of his estate

to his executors and trustees to provide a home for his widow and children and divide the residue of the income among them; and it was provided that upon the death of the widow the estate should be divided among the children, the descendants of a deceased child to take its parent's share. One of the children died before the widow, leaving a husband and child and a will giving all her property to her husband for life. Held, That the corpus of the estate did not vest in the children during the widow's life and that the child was entitled to its mother's

share.-Delafield et al. v. Shipman, 50. 3 A will shown to have been in the custody

of the deceased and not found among his

* and

papers after his death is presumed to have been revoked by him.-Collyer v. Collyer

et al., 82. 4. Evidence insufficient to overcome such

presumption.--Id. 5. The ninth paragraph of testator's will

was as follows: * I order and direct that after the decease of my said wife, and my youngest child shall arrive at the age of twenty-one years, my executor hereinafter named, or such person or persons as may then legally represent my said estate and the interests of my said children, shall dispose of all such property as shall then remain of my said estate, within eighteen months thereafter out of the proceeds thereof, after deducting all necessary expenses, divide the same together with all other property belonging to my estate, equally among the children I may then have, or those who may be legally entitled thereto." At the time fixed for the division of the estate testator's son J. was the only one of his children who was living. Two children of testator's deceased son C. and the widow of said son were also living at that time. Held, That testator's son J. was entitled to one-half of the estate and the children of testator's deceased son C. were entitled to the remaining moiety to be equally divided between them. That the widow of C. was not entitled to share in the distribution of the estate.-In re

settlement accounts of Paton, 91. 6. The word “children” may be construed

to include grandchildren when such an enlargement of the term is necessary to carry into effect what appears to have

been the intention of the testator.-Id. 7. Testator, by his will, gave certain land

to his daughter for life and after her death to her lawful child or children, his, her or their heirs forever ; if more than one, share and share alike as tenants in common; and in case any or either of the children of my said daughter at the time of her death be dead, leaving lawful child or children him or her surviving, such child or children shall have the share or portion which his, her or their parent would have been entitled to if living ; to have and to hold to him, her or them and their heirs forever. Held, That the daughter of the testator took a life estate in the said premises, and that her children in being at the testator's death took a vested remainder in said property subject to open and let in after-born children, who were entitled to a share which was not enlarged by the death of any of the other children, and that such shares were alienable and devisable.- Byrnes et al. v. Stilwell et al., 133. 8. Testator by the third article of his will

provided that all the rest, residue and

Sinzheimer, 166. 9. The word heirs when used by a testator

to indicate the beneficiary of a bequest of personal property must be interpreted as equivalent to the term “next of kin" in the absence of anything pointing to some other interpretation as more conso

nant to the testator's intention.-Id. 10. A decedent's widow is neither his heir

nor his next of kin.-Id. 11. On questions of testamentary capacity

courts should be careful not to confound perverse opinions and unreasonable prejudices with mental alienation. These qualities of mind may exist even in a high degree, but yet so far as regards the view which the law takes of the case the subject may be sane and competent to perform a legal act.— In re estate of Gross,

305. 12. It is not sufficient for the purpose of

establishing undue influence to show that the will is the result of affection or gratitude or the persuasion which a friend or relative may legitimately use. But the influence must be such as to overpower and subject the will of the testator, thus producing a disposition of property which he would

not have made if left freely to act his own pleasure. -Id. 13. The rule of the common law requiring

affirmative evidence in a will of intent to execute a power of appointment is abrogated by statute and the rule declared by the statute is applicable to personal as well as real property.-In re settlement

of Piffard et al., 357. 14. The intent of the testator to dispose of

all his property should be effected, if the circumstances will permit, and such intent can only be carried out in this case by giving effect to the execution of the power of appointment, as executed in the

will of his daughter.-Id. 15. That the words “my property” as used

in the will of the daughter cannot be treated as words of limitation, but embraced all the property which she then, place after the making of a will disposing of the whole estate of the testator and is in no wise provided for or referred to in such will, such will will be deemed revoked, and of course such infant has a status as contestant.-Id.

or in any future event, had the right to dispose of by will pursuant to any power

devolved upon her.-Id. 16. The legal effect of the will of the testa.

tor in this case was to impose on the will of the donee of the power the intent on her part to execute the power and pass

the fund to her legatees. — Id. 17. Testator by will gave his wife the use

of two farms and the personal property thereon and the income of his bank stock during her natural life and the right to dispose of “the same by will except the bank stock.” Held, That under this pro. vision'it was competent for the widow to dispose of the farms by will.-Thomas et

al. v. Snyder et al., 443. 18. Under the laws of this State a person

can take under a will although he, know. ing its contents and fearing its revocation on account of his misconduct, murders the testator and is convicted of the crime.—Preston et al. v. Palmer et al.,

453. 19. Where in objections, interposed in be

half of a special guardian for an infant to the probate of a will, it appears that the infant contestant was born after the death of the decedent and is the issue of a marriage contracted before the making of the will, and that such infant is unprovided for by any settlement and not mentioned in the will, the will must be admitted to probate notwithstanding such objections, as such infant takes as if the father had died intestate, and must resort to the remedies provided by $ 1868 of the

Code.-In re estate of Gall, 465. 20. Where, however, such infant contestant

is the issue of a marriage which took

21. An attorney is not prohibited by $ 835,

Code Civ. Pro., from testifying in support of a will upon contested proceedings for its probate as to what transpired between the testator and himself at the time of his employment by the former to prepare the will and during the process of its preparation and publication.-In re probate will of Austin, 516. 22. Testator, after creating certain trusts

for the lives of beneficiaries and devising a lot to one P. in fee, gave the residue of his egtate to his executors to use as in their judgment they deemed for the best interest of the estate, with power to mortgage it for that purpose, and after the termination of the real estate trusts he devised the fee to his legatees in the proportion their specified legacies bear to each other. Held, That the residuary clause effectually devised the land referred to, and that the devisees in fee were the persons mentioned as beneficiaries and P., and that the proceeds of a sale on partition should be divided as to the beneficiaries in proportion to the value of the real estate from which they were respectively entitled to the income and as to P. in proportion to the value of the fee of the land given to him ; that the trust created by the residuary clause was invalid.- Weeks et al. v. Cornwall et al., 518.

See DOWER, 2; ESTOPPEL ; LEGACY ; TRUST

EES, 4, 9; TRUSTS, 2.

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