to act against his free will and desire, but which he was unable to refuse or too weak amounted to a moral coercion which re. to her condition. She continued to strained independent action and destroyed manage her business, executed conveyfree agency, or which, by importunity which ances, conversed intelligently with her could not be resisted, constrained the testator friends and her attorney, giving instructions to the latter as to her will, and following in some respect his advice. She collected rents, directed improvements on her property, and virtually acted the same as she had done to resist. Testatrix was a person of intelligence and considerable business capacity and was en tirely competent to make a will until, in 1868, she had an attack of illness resembling apoplexy or paralysis. After that she continued to manage her business, executed conveyances, and conversed intelligently with her friends and with her attorney, giving instructions to the latter as to her will, and generally conducted her affairs the same as before. She had had frequent quarrels with her husband, and they had repeatedly lived apart, and at one time a divorce suit was pending between them. On proceedings to admit the will to probate it was objected that testatrix was incompetent by reason of de lusions in reference to her husband and some in the conduct of her affairs. No act of insanity, or of improvidence or wastefulness in the management of her property, was proved showing any hallucination in respect thereto, or a want of testamentary capacity. It was proved that the testatrix and her husband had been engaged in frequent quarrels during their married life, and that on one occasion she publicly struck him for looking at another of her children, which created a wrong im woman, and they had repeatedly lived pression on her mind and induced her to apart, on one occasion for five years; make a discrimination against them in the that at one time a divorce suit was disposition of the estate. Held, That the facts pending between them, and that a son did not show a want of testamentary capacity of the testatrix assaulted her with a This was a controversy in regard to pistol, for which he and her husband. the validity of the will of Emily Coit. were indicted and the son convicted. The will was objected to on the ground There was no proof establishing the of the incompetency of the testatrix, husband's infidelity. It appeared that by reason of delusions in reference to proceedings had been instituted to her husband and some of her children, have a committee appointed to take which created a wrong impression on charge of the estate of the testaher mind and induced her to make a trix, of which the deceased had discrimination against them in the dis- knowledge, and that she was advised position of her estate, and, also, on the ground of undue influence and fraud exercised over the mind of the testatrix by her daughter, Mrs. Grey, who was the principal benificiary under the will. It appeared that the testatrix was a person of intelligence, considerble business capacity, and until 1868, when she had an attack of illness resembling apoplexy or paralysis, was entirely competent to make a legal dis- The testatrix was shown to be a position of her property. Since that woman of strong will, who had passed time the testimony was conflicting as a life of strife and turmoil, and had by her attorney that if the proceedings were successful, the right existed to place her in an asylum. It also appeared that the husband arrested the proceedings. Mrs. Grey had taken an active part with her mother, the testatrix, in the family quarrels, and believed that her mother was treated unkindly, which belief was shared in by her sister, Mrs. Patchen. in some way obtained a conveyance EVIDENCE. PARTNERSHIP. of a portion of her husband's estate, N. Y. SUPREME COURT. GENERAL which was a subject of frequent controversy. There was no proof that Mrs. Grey, by direct importunity or TERM. FIRST DEPT. George H. Cheever, adm'r, &c., Decided Nov. 6, 1879. otherwise, induced the making of the applt., v. Gazaway De R. Lamar, exwill of the testatrix, although it did ecutor, &c., respt. appear that she helped along the difficulties that existed between the testatrix and the other members of the family. E. More, for applts. Edgar M. Cullen, for respts. Copartnership books are prima facie evidence of the facts appearing by the entries therein in favor of and against the copartners as between themselves. The facts that the books were accessible to all A copartnership may exist where one partner Held, That the contestants failed to make out a case, either of a want of testamentary capacity or of undue influence. To avoid a will upon the ground of undue influence, it must be shown that the influence exercised amounted to a moral coercion, which restrained independent action and destroyed free agency, or which, by importunity which could not be resisted, constrained the testator to act against his free will and desire, but which he was unable to refuse or too weak to resist; the coercion must be produced by importunity, or by a silent, resistless power which the strong will often exercises over the weak and inferior and which could not be resisted, so that testator had been as copartners enthe motive was tantamount to force or fear. 70 N. Y., 394; 34 Id., 155, 162; 66 Id., 144; 1 Jar. on Wills, 36, 37; 3 Keyes, 663. Delafield v. Parish, 25 N. Y., 95; Tyler v. Gardiner, 34 Id., 594; Kinne v. Johnson; 60 Barb., 69; Forman v. Smith, 7. Lans., 443. Action for an accounting and to recover balance claimed to be due plaintiff as copartner. The plaintiff claimed that his intestate was partner with G. B. Lamar in buying and selling cotton, and on the reference it was established that defendant was indebted in a large sum on the cotton transaction. But defendant claimed plaintiff's intestate and defendant's gaged in buying and selling guano, and that plaintiff's intestate was indebted upon the guano transaction in a much larger sum than the defendant's testator was indebted upon the cotton transactions. The referee found that to be the fact, and awarded judgment for defendant, from which this appeal is taken. On appeal many exceptions at the trial were urged. First, to the reception of a certain alleged copartnership ledger containOpinion by Miller J. All concur, ing entries with respect to the guano except Andrews, J., absent. transactions, which ledger was at first Judgment of General Term, affirming decree of surrogate, admitting will to probate, affirmed. kept by Lamar exclusively in New tain receipts by Lamar in Confederate York, and the entries made by him money, the value of which was not exclusively. But he afterwards re- shown, which should have been almoved to Savannah, to which place lowed to plaintiff's intestate on the the ledger was taken. After that plain- accounting. For these errors judgment tiff's intestate had ample opportunity reversed, new trial ordered, costs to to inspect same, and was consulted abide the event. with respect to and gave directions as to entries to be made therein. The plaintiff's intestate, Cheever furnished no capital; all the money Opinion by Daniels, J.; Brady and Ingalls, JJ., concurring. REFERENCE. capital was furnished by defendant's N. Y. SUPREME COURT. testator. Other exceptions to the TERM. FIRST DEPT. GENERAL referee's report are hereafter suffi- Frederick Baker, respt., v. Peter H ciently noted. Scott & Crowell, for applt. Edward N. Dickerson, for respt. Held, The ledger containing entries with respect to the transactions in guano, &c., was properly received, although said book contained entries. also of the private accounts of Lamar. 6 Hill, 318; 3 Paige, 566; 5 Mason 176. The proof showed that the plaintiff's intestate, Cheever, had access to the books and an opportunity to examine them, which were the only books containing the entries with respect to the transactions. Sufficient was shown to make the books copartnership books, and make the same prima facie evidence of the facts shown by the entries, in behalf of and against the copartners as between themselves. Walsh, applt. Decided November 6, 1879. A compulsory reference cannot properly be di rected in an action upon an account stated. The fact that there were many items which entered into the account stated between the parties is of no consequence if plaintiff is entitled to recover on an account stated. The complaint sets forth a cause of action to recover upon three separate accounts stated between plaintiffs as copartners and defendants as copartners on the first day of January, 1874, 1875, and 1876. The answer was a general denial of the accounts stated, and alleged that the accounts between the parties arose by reason of a contract, thereto annexed, between the parties plaintiff's and defendants, and that there had been a breach of said contract by plaintiffs, by which defendants had been damaged in the sum of $20,000. The existence of the copartnership with respect to the guano transactions was reasonably established. A copartnership may exist where one of the copartners furnishes capital and another services, or skill only. Parsons on Part. 2d edition, page 57, and this appeal is taken. Note V. The compound interest, however, which was allowed by the referee on the balances in Lamar's favor was error. Furthermore, there were cer A bill of particulars was served by plaintiffs in the case, composing a large number of items. The Court ordered a reference, from which order S. B. M. Stokes, for applt. Henry E. Howland, for respt. Held, On the pleadings in this action the case is not referable. The complaint is simply upon an account stated. It is of no consequence if the EMINENT DOMAIN. TITLE. N. Y. COURT OF APPEALS. Ballou, admrx., respt., v. Ballou, applt. Decided Oct. 7, 1879. The title to lands when taken by the State for public purposes, does not vest in the State until the amount of damages becomes fixed by appraisement. award was paid to defendant May 14, E. J. Richardson, for applt. Held, That the title to the land taken descended to the son, with the claim for damages against the State; that the title did not vest in the State until the amount of damages became fixed by appraisement; that the title, therefore, remained in plaintiff's husband until his death, and then descended to his heir-at-law, subject to plaintiff's dower, together with the claim against the State; that at the time of the son's death this claim was a personal asset, and went to plaintiff, as his representative. Where an appraisal of damages for land taken Also held, That defendant could not for public purposes was not recorded until set up in this action, as a counterafter the owner's death, Held, That the title claim, a note held by him against to the land descended to the heir at law, sub-plaintiff's husband, as plaintiff stood as the representative of her son. ject to the widow's dower, together with the claim against the State. Plaintiff sued, as administratrix of her husband and son, to recover money received by defendant from the State for damages in appropriating for public purposes land of her husband, Judgment of General Term, affirming judgment for plaintiff, affirmed. Opinion by Church, Ch. J. All con who died before the damages were assessed, cur, except Folger and Andrews, JJ., leaving his son as sole heir. Held, That defendant could not set up as a counterclaim a note held by him against plaintiff's husband. Affirming, S. C., 8 W., Dig., 363. This action was brought by plaintiff, as administratrix of the estate of her husband and her son, to recover of defendant a sum of money received by him of the State for damages in appropriating land for the canal. The referee found that the land, at the time of the appropriation, was owned by plaintiff's husband; that it was appropriated in 1850; that plaintiff's husband died in 1854, and the appraisal of damages was recorded in 1859. Plaintiff's son was the only heir of his father, and he died intestate, April 29, 1862. The amount of the absent. WILLS. TRUSTS. N. Y. COURT OF APPEALS. Donovan, applt., v. Vandemark, respt. Decided Sept. 23, 1879. Testator devised all his estate to C., in trust "for the necessary support of my son Abraham during his natural life, and after his death, to Abraham's children;" appointed C executor, and empowered him to sell certain premises. In an action of ejectment brought by plaintiff as successor to the Trustee, Held, That a valid trust under the provisions of 2 R. S., Tit. 2, chap. 1, art. 2, § 55, was created by the will; that the will conferred title to the property on C, and that Abraham was not entitled to the use or possession of the land or its proceeds, but only his neces- sary support and the amount thereof is to statute is clearly embraced in the be determined by C. To create a valid trust under the statute, it is sufficient if a purpose within the statute is clearly embraced in the language used; it is not necessary that the trust should be stated in the very words of the statute. Reversing S. C., 8 W. Dig., 391. language used, for the execution of which the trustee may be clothed with the legal title. 2 N. Y., 297; 23 id., 298; 53 id., 351; 64 id., 332. Verdin v. Slocum, 71 N. Y., 345, distinguished. Judgment of General Term, affirm This was an action of ejectment brought by plaintiff, as trustee under ing judgment for defendant, reversed and new trial granted. the will of one S., under which plain tiff claims title. Plaintiff is the successor of the trustee named in the will, who refused to act. S. devised the premises in question in these words: "I give, devise and bequeath to George Chambers all my estate, in trust, nevertheless, for the necessary support and maintenance of my son Abraham during his natural life, and after his death I give and bequeath the said estate to Abraham's children." S. appointed Chambers executor of his will, and empowered him to sell certain premises, those in question being among them. Opinion by Danforth, J. All concur, except Folger and Andrews, JJ., absent. N. Y. COURT OF APPEALS. Decided October 7th, 1879. On a trial for murder, after it was proved that deceased was shot, a witness who stated that he was familiar with the use of firearms and the appearance of wadding shot from a gun, was asked whether the paper produced which had been found near the place, where the killing was alleged to have taken place, had that appearance or not and answered that it had. Both question and answer were received under objection. The General Term having reversed the judgment and granted a new trial, Held, that the competency of the evidence was not free from doubt and that the General Term having reversed the conviction, and the case being one where capital punishment would be inflicted, the prisoner should have the benefit of the doubt. J. E. Van Etten, for applt. J. Newton Fiero, for respt. Held, That the will conferred title to the property devised on Chambers in trust; that the testator did not intend that the beneficiary, his son Abraham, should have the use or control of the land or its whole proceeds, but only his necessary support, and how much is necessary is to be determined by Chambers. Also held, That the will created a was tried and convicted, and sentenced trust valid under the provisions of Title 2, Part 2, Chap. 1, Art. 2, § 55 of the Revised Statutes, and a legal title was vested in the Trustee. Also held, That to create a valid trust under said statute it is not necessary that the trust should be stated in the very words of the statute, but it is sufficient if a purpose within the The defendant in error was indicted for murder in the first degree. He to be executed on the 21st of June, 1878. The General Term reversed the judgment of conviction and granted a new trial on the ground of error in the admission of testimony. It was proved that the person whom the defendant in error was charged with killing was shot, and that near the place where the killing was alleged to have |