WILL- Continued.

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PAGE.

* * *

2. Gift to a father "during his natural life and at his death to his
children" -each child born after the death of the testator takes a vested remain-
der subject to open and let in others the word "at" relates to time of acquir.
ing possession the children take distributively as tenants in common, not col-
lectively as a class.] The will of a testator provided, "I give, bequeath
and devise unto my son, Joseph, the house and lot of ground,
subject to the dower interest aforesaid (meaning the dower interest of the
testator's wife Wilhelmina), to have and hold the same during his natural
life, and at his death to his children." The testator's son Joseph was
married at the time of the testator's death, but at that time had no children.
Three children were subsequently born to him, one of whom, Joseph Ray-
mond, executed a mortgage on the premises and thereafter died.

Held, that each of the children of the testator's son Joseph took, at its
birth, a vested remainder in the premises, subject to open and let in other
children subsequently born to Joseph, and that the vested remainders
acquired by the children of Joseph could be conveyed cz mortgaged by them;
That the word "at," as used in the devise, designated the time of enjoy-
ment and fixed the period at which the estate was to vest in possession and
not in interest;

That the devise of the remainder to the children of the testator's son
Joseph was to them distributively as tenants in common and not to them
collectively as a class. MANHATTAN REAL ESTATE ASSN. v. CUDLIPP...... 532
3. Effect upon a specific devise in a will of a residuary clause in the
codicil thereto.] A testator by his will made provision for his wife so long
as she might remain his widow and gave certain specific bequests to his
brother, his adopted daughter and to his mother. By the 11th paragraph
thereof he devised a certain farm to his nephew. He subsequently executed
a codicil thereto, the 1st paragraph of which provided: "I hereby ratify and
confirm said Will in every respect save so far as any part of it is inconsistent
with this codicil." The codicil revoked the specific provisions previously
made for his wife during her widowhood and certain bequests to relatives
who had died subsequent to the making of the will and directed that all of
the property covered thereby should revert to his estate. He then declared
that the property which reverted to his estate should become the absolute
property of his wife. In the 7th paragraph of the codicil he gave to his wife
a certain house and lot not mentioned in the will, and in the 8th paragraph
thereof gave to her "all the rest, residue and remainder of my estate, both
real and personal." In the 12th paragraph of the codicil he again ratified
the will, declaring: "I hereby ratify and confirm my said last will and testa-
ment in each and every other respect except as aforesaid.”

Held, that it was not the testator's intention in the residuary clause of the
codicil to revoke the specific devise made to his nephew by the 11th para-
graph of the will and to devise such property to his wife.

4.

GRIGGS . GRIGGS..

When a power of sale is confined to real estate used in the testator's
business.] The 5th paragraph of the will of a testator provided: “I
give, devise and bequeath to my executors hereinafter named all my real
property and all the rest, residue and remainder of my personal property
of which I may die seized in trust nevertheless for the following purposes:
To continue the pawnbroking business now carried on by me at number 214
and 216 Atlantic Avenue in the said Borough of Brooklyn, under the
business style of Arthur J. Heaney & Co., until my son Arthur J.
Heaney shall arrive at the age of twenty-five years, unless they, my said
executors, should all agree that a sale of my said business before that time
would be of benefit to my estate, then they shall have power to sell the
same."

The 7th paragraph provided that, upon the termination of the trust
estate, all of the testator's real property should be distributed among his
children. The only provision of the will relating to the sale of any of the
testator's property was that contained in the 5th paragraph.

Held, that the power of sale conferred on the executors and trustees was con-
fined to the testator's pawnbroking business, and that the executors had no
power to sell a parcel of the testator's real estate which was not used in con-
nection with such business. O'REILLY v. PLATT..

339

348

WILL- Continued.

PAGE.

5. Commission to take the proofs as to a codicil― indemnity against the
expense of temporary administration and security for costs-they should not be
required of the applicant for the commission - the executor should apply there-
for.] Where a will, executed in the United States, and a codicil, executed
in the Netherlands, are offered for probate in the State of New York, a
legatee under the codicil, who contends that the domicile of the testatrix
was in Holland at the time of her death, should not, as a condition of obtain-
ing a commission to take, in Holland, the testimony of the subscribing wit-
nesses to the codicil and to establish the domicile of the testatrix, be
required to indemnify the estate against the expense which has been or may
be incurred by reason of the appointment of a temporary administrator
and to give security for any costs which may be awarded against him in the
event of his final defeat.

Semble, that it was the executor's duty, as proponent of the codicil, to
procure and lay before the court such evidence as was necessary to establish
it. MATTER OF SCOTT....

369

6. A gift of "the interest of twenty thousand dollars," held not to entitle
the beneficiary to legal interest thereon.] Where a will uses the words "income"
and interest" indifferently and as synonymous terms, a clause in the will
by which the testator bequeaths the interest of twenty thousand dollars"
to his son during his natural life, does not entitle such son to receive legal
interest on the sum of $20,000 during his lifetime, but only the income of
the securities in which the trust fund has been invested, particularly where
the latter construction was the one adopted by the testator's son and the
executors in their dealings with each other. MATTER OF MURPHY......... 238
7. Effect of a receipt for "interest money in full to date."] On an
accounting wherein the administratrix of the son's wife, who was the sole
beneficiary under her husband's will, endeavored to surcharge the accounts
of the executors because of their alleged failure from 1877 to 1886 to collect
interest on part of the mortgages in which the $20,000 fund was invested,
an unassailed receipt signed by the son, dated July 11, 1888, for $150
"interest money in full to date," is conclusive against the administratrix's
contention. Id.

8. Of a resident of the State of New York-probate thereof in the
State of New York when it is subscribed by witnesses residing therein and it is
filed in a Probate Court of another State.] Under section 2620 of the Code of
Civil Procedure the will of a resident of the State of New York, made and
executed in that State and subscribed by witnesses residing therein, can-
not be admitted to probate in the State of New York when its produc-
tion before the surrogate is rendered impossible by the fact that it has been
filed in a Probate Court of another State in which it has previously been
probated. MATTER OF LAW...

9. It cannot be proved before a commissioner.] Such a will cannot be
established by the issuance of a commission, as the commissioner would
have no power to compel the attendance of the subscribing witnesses in the
State in which the will was filed. Id.

10. An action may lie to establish it.] Semble, that in such a case an
action to establish the will might be brought under section 1821 of the Code
of Civil Procedure. Id.

11. — Undue influence which will invalidate a will.] The undue influence
which will invalidate a will is such as deprives the testator of the free exer-
cise of his intellectual powers; it must be a present constraint operating upon
the mind of the testator at the time of the testamentary act.

IVISON 0. IVISON.

12. What capacity a testator must possess.] A testator will be deemed to
have been a person of sound mind and memory within the meaning and
intent of the Statute of Wills, if, at the time he executed the will, he had
sufficient active memory to collect in his mind, without prompting, the par-
ticulars or elements of the business to be transacted, and to hold them in
his mind a sufficient length of time to perceive their obvious relations to
each other and be able to form some rational judgment in relation to them.
Id.

73

599

WILL- Continued.

PAGE.

13. What evidence does not establish a want of testamentary capacity.]
Evidence that a testator was miserly, eccentric and irrational upon some sub-
jects is not sufficient to establish a want of testamentary capacity, in the
absence of proof that he did not know the amount or nature of his prop-
erty, and who were the natural objects of his bounty, or that he did not
fully understand what he was doing when the will was made. Id.

14. When in an action to set aside the probate of a will a verdict may be
directed for the defendant.] In an action, brought under section 2653a of the
Code of Civil Procedure, to set aside the probate of a will upon the ground
that the testator lacked testamentary capacity, it is incumbent upon the plain-
tiff to overcome the legal presumption of the testator's testamentary capacity
and the prima facie case, which, under the terms of the section, the decree of
probate establishes in favor of the defendant, by producing evidence which will
justify the jury in finding that the testator lacks testamentary capacity, and,
until he has succeeded in doing this, the court is not obliged to submit any
question to the jury, but may direct a verdict in favor of the defendant. Id.

15. In such a case all contested facts are to be treated as established in
the plaintiff's favor.] Upon an appeal from a judgment entered upon a ver-
dict directed by the court in such a case, the appellant is entitled to the
most favorable inferences deducible from the evidence and all contested facts
are to be treated as established in his favor. Id.

---

--An imperative direction to sell converts the real estate into personalty
and trusts in respect thereto are trusts of personalty - when a direction to
sell and distribute creates a trust, not a power-executors empowered to
sell are entitled to the rents of the real property to be sold - legacies which
draw interest only from the end of one year legacies as distinct from shares
in the residuary estate- beneficiary authorized to use the principal of the
fund-she may be considered a trustee for the remainderman - the income
of a residuary share left in trust held to go to the executors-application of
the income to the use of the beneficiary or to that of his family income not
required by the beneficiary goes to his wife or children a trust fund which
the executors have elected to pay over to the beneficiary, does not go to her
administrator the power of executors to employ one of themselves as agent
not considered in an action for the construction of the will.
RUSSELL . HILTON......

178

Right of the executor of a deceased partner to continue the partner-
ship business-express authority by will is necessary.

MATTER OF MCCOLLUM..

362

See PARTNERSHIP.

Probate of.

See SURROGATE.

See MINCH v. NEW YORK & QUEENS COUNTY R. Co..

WITNESS- Charge in a negligence case that the jury may consider the
absence of a physician who testified on a former trial that he had found nothing
indicating that the plaintiff had been injured.

to an examination after, of a witness examined at, the trial.
See O'CONNOR v. MCLAUGHLIN

324

Scope of a deposition under Code of Civil Procedure, § 885-it extends

305

Opinion of a witness as to where water, which had frozen on the sidewalk

came from.

See WITTMAN v. CITY OF NEW YORK..

585

Examination of, before trial.

See DEPOSITION.

See EVIDENCE.

WRONG - A satisfaction of a claim for injury against one or more joint
tort feasors discharges all. O'BRIEN v. BROOKLYN HEIGHTS R. R. Co....... 474

See NEGLIGENCE.

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YONKERS — Right of the city of Yonkers to grade a private road — remedy of
an adjoining moner chere the city does so.

See CULVER . CITY OF YONKERS.....

309