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issue would vest in the surviving beneficiaries. | invested for the purchase of an annuity.-Reid
-Dexter v. Watson (Sup.) 80.
v. Brown (Sup.) 27.

Will construed, and notwithstanding the in-
validity of a part thereof the same held not so
interdependent with the scheme of distribution
that that also failed.-Stewart v. Woolley (Sup.)
99.

*The power of executors under a will to se-
lect beneficiaries held not to be exercised at tes-
tator's death, but only after the creation of the
fund from which such beneficiaries were to be
paid.-Stewart v. Woolley (Sup.) 99.

*Will construed, and testator's intendment
held to be to create an express trust in his ex-
ecutors, and not a power in trust.-Stewart v.
Woolley (Sup.) 99.

Will construed, and if a certain sum derived
from a sale of testator's real property was in-
sufficient to pay legacies given to his children
the rents and profits held available to pay such
legacies.-Stewart v. Woolley (Sup.) 99.

*An appointee under a will could either ac-
cept the title tendered by the appointment_or
reject it, in his discretion. In re Ripley's Es-
tate (Sup.) 844.

*Beneficiaries in a will effecting an equitable
conversion of the realty elect by disposing of a
part of their interests to take the realty rather
than the proceeds.-Van Norden Trust Co. v.
O'Donohue (Sup.) 948.

*Devisees in a will entitled to take on the
death of a life beneficiary, subject to designated
contingencies, may before the death of the life
beneficiary convey their interests.-Van Norden
Trust Co. v. O'Donohue (Sup.) 948.

*A legacy of stock held to be general and not
specific. In re King (Sup.) 1073; Foulds v.
King, Id.

*Intent to charge general legacies on real es-
tate held not inferable under the circumstances.
A will construed, and the vesting of a remain--Van Gillurve v. Becker (Sup.) 1080.
der in real property held not to take place on
testator's death, nor at the death of his widow,
but rather on the death of a son.--In re Mur-
phy (Sup.) 183.

A will held to create a trust requiring the
trustees to account to the life beneficiary's chil-
dren, and not to her executor or administrator.
-Close v. Farmers' Loan & Trust Co. (Sup.)
329.

*Where a will creates a trust but connects
with it an unlawful accumulation of income,
the trust will be sustained so far as it is legal,
and the accumulation will pass under the re-
siduary clause, if there is one, otherwise as
unbequeathed assets.-Endress v. Willey (Sup.)

726.

*A will creating a valid general trust and
connecting with it provisions for unlawful ac-
cumulation of income construed.-Endress v.
Willey (Sup.) 726.

*A residuary clause may be general, even
though not separate from other clauses in the
will.-Endress v. Willey (Sup.) 726.

*Will construed, and certain legacies held
to vest absolutely on the death of testatrix.-
Orange County Trust Co. v. Morrison (Sup.)
940.

A will construed, and held to make certain
beneficiaries the owners of testator's property
on the death of a life beneficiary.-Van Norden
Trust Co. v. O'Donohue (Sup.) 948.

*"Issue" as used in a will held to embrace
lineal descendants of every generation.-Bassett
v. Wells (Sup.) 1068.

*Will construed, and rights of beneficiaries un-§
der a trust created thereby determined.-Bassett
v. Wells (Sup.) 1068.

§ 6. Rights and liabilities of devisees
and legatees.

Where an executrix under the will is requir-
ed to invest a certain sum in the purchase of
an absolute annuity, the annuitant may elect
to take the capital sum, instead of having it

106 N.Y.S.-78

*Interest should be allowed on legacies from
the death of life tenant to the date of payment.
-In re Runk (Sur.) 851.

Where there is an excess of assets or of what
could be given to charitable legacies under
Laws 1860, p. 607, c. 360, but a deficiency of
assets to pay all the legacies in full, there is
no intestacy as to any such excess until after
payment in full of all the valid legacies. In re
Runk (Sur.) 851.

*Where there is merely a bequest of stock,
without any attempt at definite description, the
legacy is general.-In re Bergen's Estate (Sur.)
1038.

WITNESSES.

See "Depositions"; "Evidence."

Credibility of as question for jury, see "Trial."
§ 4.
Experts, see "Evidence," § 5.
Opinions, see "Evidence," § 5.
§ 1. Competency.

*The patient when a witness can no more
be compelled to disclose confidential communica-
tions than can the physician.-Dambmann v.
Metropolitan St. Ry. Co. (Sup.) 221.

*The relation of physician and patient being
established, communications by the patient to
the physician will be presumed to be necessary
for proper treatment in a professional capacity.
Dambmann v. Metropolitan St. Ry. Co. (Sup.)

221.

2. Examination.

On cross-examination, counsel held not bound
to repeat question in the way the witness had
answered it on direct examination.-Weinstein
v. Singer Mfg. Co. (Sup.) 517.

*The right of a voter to protection against
the disclosure of his vote may be waived by him,
and he may elect to testify thereto.-People v.
Wintermute (Sup.) 1076.

*Point annotated. See syllabus.

WAYS.

and 140 New York State Reporter

Private rights of way, see "Easements."

presumption that he practiced undue influence on testator.-In re Thompson's Will (Sup.) 111. Evidence examined, and held insufficient to

Public ways, see "Highways"; "Municipal Cor- show that the execution of a will was obtained porations," § 6.

WELLS.

Nominal damages for breach of contract to advance money for boring oil well, see "Damages," § 1.

WHARVES.

Condition and use of piers of municipal corporation, see "Municipal Corporations," § 7.

WILLS.

See "Descent and Distribution"; "Executors and Administrators."

Barring of right of legatee by limitations to require an executor to account, see "Limitation of Actions," § 1.

by undue influence.-In re Thompson's Will (Sup.) 111.

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*The probate of a last will will be set aside only where there is substantial proof of mental Construction and execution of powers, see "Pow- incapacity of the testator or the exercise of undue influence.-Shayne v. Shayne (Sup.) 34.

ers," § 2. Construction

"Trusts."

and execution of trusts, see

Courts of probate, see "Courts," § 4.
Equitable conversion, see "Conversion."
Legacy and succession taxes, see "Taxation,"
$ 5.

Restriction on perpetuities, see "Perpetuities." Right of devisee to maintain partition, see "Partition," § 1.

Termination of power created by will, see "Powers," § 1.

§ 1. Nature and extent of testamentary

power.

Where testator gave the residue of his estate to his wife for life, and then made certain charitable bequests, computation to determine excess thereof, under Laws 1860, p. 607, c. 360, should be based on the actual duration of the life estate and not on the probability of its duration at the testator's death.-In re Runk (Sur.) 851.

§ 2. Testamentary capacity.

A will by a drunkard is valid, if at the time of its execution he knew the nature and disposition of his estate and his relations to those having any claim on his bounty.-In re Tifft's Will (Sur.) 362.

Will admitted to probate against the objection that testator's testamentary capacity was affected by his habits of habitual intoxication. -In re Tifft's Will (Sur.) 362.

Evidence held insufficient to show incompetency of testator on account of drunkenness.In re Feeney's Will (Sur.) 464.

Evidence held insufficient to show mental incapacity of testator.-In re Armstrong's Will (Sur.) 671.

§ 3. Requisites and validity.

The mere fact that the draughtsman of a will is made executor or a trustee does not raise any

*In an action under Code Civ. Proc. § 2653a, to set aside probate of codicil, plaintiff must overcome the presumption of the due execution by a preponderance of the evidence.-Shayne v. Shayne (Sup.) 34.

Legatee under Code Civ. Proc. § 2617, cannot intervene to oppose probate of will where he would acquire less under a prior will of testator.-In re Hoyt's Will (Sur.) 359.

*Where expert testimony as to the testamentary capacity of testator is in conflict with that of subscribing witnesses, one of whom is a physician, the testimony of the subscribing witnesses should prevail.-In re Tifft's Will (Sur.) 362.

*In a proceeding for the revocation of a will, the surrogate has no jurisdiction to construe its provisions. In re Wilcox's Estate (Sur.)

468.

*Will offered for probate executed by a mark. the attesting witness being dead, admitted to probate under Code Civ. Proc. § 2620.-In re Foley's Will (Sur.) 474.

*Husband alone held entitled to object to bequest of more than one-half of wife's estate to a religious corporation as in violation of Laws 1860, p. 607, c. 360.-In re Eldredge's Estate (Sur.) 1036.

§ 5. Construction.

Will construed, and on death of remainderman pending the life of the life tenant his share passed to his children and the devisees of the testator free from all claims of his creditors.Hall v. Senior (Sup.) 29.

*Will construed, and held to show no intent to charge a legacy on the real estate.-Bankers' Trust Co. v. Dietz (Sup.) 32.

Will construed, and held that share of deceased grandchild dying after testator without *Point annotated. See syllabus.

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