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

v. Brown (Sup.) 27.
Will construed, and notwithstanding the in *An appointee under a will could either ac-
validity of a part thereof the same held not so cept the title tendered by the appointment or
interdependent with the scheme of distribution reject it, in his discretion.-In re Ripley's Es-
that that also failed.-Stewart v. Woolley (Sup.) tate (Sup.) 844.

*Beneficiaries in a will effecting an equitable
*The power of executors under a will to se conversion of the realty elect by disposing of a
lect beneficiaries held not to be exercised at tes- part of their interests to take the realty rather
tator's death, but only after the creation of the than the proceeds.-Van Norden Trust Co. v.
fund from which such beneficiaries were to be O'Donohue (Sup.) 948.
paid.-Stewart v. Woolley (Sup.) 99.

*Devisees in a will entitled to take on the
*Will construed, and testator's intendment death of a life beneficiary, subject to designated
held to be to create an express trust in his ex- contingencies, may before the death of the life
ecutors, and not a power in trust.-Stewart v. beneficiary convey their interests.- Van Norden
Woolley (Sup.) 99.

Trust Co. v. O'Donohue (Sup.) 948.
Will construed, and if a certain sum derived *A legacy of stock held to be general and not
from a sale of testator's real property was in- specific.-In re King (Sup.) 1073; Foulds v.
sufficient to pay legacies given to his children King, Id.
the rents and profits held available to pay such

*Intent to charge general legacies on real es-
legacies.-Stewart v. Woolley (Sup.) 99.

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,

*Interest should be allowed on legacies from
but rather on the death of a son.--Ip re Mur- the death of life tenant to the date of payment.
phy (Sup.) 183.

-In re Runk (Sur.) 851.
A will held to create a trust requiring the Where there is an excess of assets or of what
trustees to account to the life beneficiary's chile could be given to charitable legacies under
dren, and not to her executor or administrator. Laws 1860, p. 607, c. 360, but a deficiency of
-Close v. Farmers' Loan & Trust Co. (Sup.) assets to pay all the legacies in full, there is

no intestacy as to any such excess until after
*Where a will creates a trust but connects payment in full of all the valid legacies.-In re
with it an unlawful accumulation of income,

Runk (Sur.) 851.
the trust will be sustained so far as it is legal, *Where there is merely a bequest of stock,
and the accumulation will pass under the re- without any attempt at definite description, the
siduary clause, if there is one, otherwise as legacy is general.-In re Bergen's Estate (Sur.)
unbequeathed assets.-Endress v. Willey (Sup.) 1038.
*A will creating a valid general trust and

cornecting with it provisions for unlawful ac-
cumulation of income construed.-Endress v.

See “Depositions"; "Evidence."
Willey (Sup.) 726.

Credibility of as question for jury, see "Trial,"

$ 4.
*A residuary clause may be general, even
though not separate from other clauses in the Experts, see "Evidence,” | 5.
will.-Endress v. Willey (Sup.) 726.

Opinions, see "Evidence," § 5.
*Will construed, and certain legacies held 8 1. Competency.
to vest absolutely on the death of testatrix. *The patient when a witness can
Orange County Trust Co. v. Morrison (Sup.) be compelled to disclose confidential communica-

tions than can the physician.-Dambmann v.
A will construed, and held to make certain Metropolitan St. Ry. Co. (Sup.) 221.
beneficiaries the owners of testator's property *The relation of physician and patient being
on the death of a life beneficiary.--Van Norden established, communications by the patient to
Trust Co. v. O'Donohue (Sup.) 948.

the physician will be presumed to be necessary
*"Issue” as used in a will held to embrace for proper treatment in a professional capacity.
lineal descendants of every generation.-Bassett

-Dambmann v. Metropolitan St. Ry, Co. (Sup.)
v. Wells (Sup.) 1068.

*Will construed, and rights of beneficiaries un- $ 2. Examination.
der a trust created thereby determined.-Bassett On cross-examination, counsel held not bound
V. Wells (Sup.) 1068.

to repeat question in the way the witness had
§ 6. Rights and liabilities of devisees

answered it on direct examination.-Weinstein
and legatees.

v. Singer Mfg. Co. (Sup.) 517.
Where an executrix under the will is requir *The right of a voter to protection against
ed to invest a certain sum in the purchase of the disclosure of his vote may be waived by him,
an absolute annuity, the annuitant may elect and he may elect to testify thereto.-People v.
to take the capital sum, instead of having it Wintermute (Sup.) 1076.

*Point annotated. See syllabus.
106 N.Y.S.-78

no more



and 140 New York State Reporter WAYS.

presumption that he practiced undue influence

on testator.-In re Thompson's Will (Sup.) 111. Private rights of way, see "Easements."

*Evidence examined, and held insufficient to Public ways, see "Highways"; "Municipal Cor- show that the execution of a will was obtained porations," 8 6.

by undue influence.-In re Thompson's Will

(Sup.) 111. WELLS.

That testatrix's will named her attorney ex

ecutor held not to raise a presumption of undue Nominal damages for breach of contract to ad- influence against the will.-In re Marlor's Will

vance money for boring oil well, see "Dam- (Sup.) 131. ages," § 1.

*Revocation of probate of will because of undue influence denied.-In re Wilcox's Estate

(Sur.) 468. Condition and use of piers of municipal corpo- | $ 4. Probate, establishment, and annal. ration, see “Municipal Corporations," $ 7.

ment. *In order to submit to the jury the question as to whether testator was of sound mind at the

execution of the codicil, evidence must show inSee “Descent and Distribution”; “Executors

sufficient mental capacity to understand the

condition of his property, to remember his reand Administrators."

lations and the scope of the provisions of the Barring of right of legatee by limitations to re

codicil.-Shayne v. Shayne (Sup.) 34. quire an executor to account, see “Limitation of Actions," § 1.

*The probate of a last will will be set aside Construction and execution of powers, see "Pow

only where there is substantial proof of mental

incapacity of the testator or the exercise of uners," $ 2. Construction and execution of trusts, see

due influence.-Shayne v. Shayne (Sup.) 34. "Trusts."

*In an action under Code Civ. Proc. $ 2653a, Courts of probate, see "Courts," $ 4.

to set aside probate of codicil, plaintiff must Equitable conversion, see “Conversion."

overcome the presumption of the due execution Legacy and succession taxes, see "Taxation," by a pteponderance of the evidence.-Shayne v. $ 5.

Shayne (Sup.) 34. Restriction on perpetuities, see “Perpetuities."

Legatee under Code Civ. Proc. $ 2017, cannot Right of devisee to maintain partition, see “Par intervene to oppose probate of will where he tition," $ 1.

would acquire less under a prior will of testaTermination of power created by will, see "Pow

tor.-In re Hoyt's Will (Sur.) 359. ers," $ 1.

*Where expert testimony as to the testamen$ 1. Nature and extent of testamentary tary capacity of testator is in conflict with that power.

of subscribing witnesses, one of whom is a Where testator gave the residue of his estate physician, the testimony of the subscribing wit. to his wife for life, and then made certain chari- nesses should prevail.-In re Tifft's Will (Sur.) table bequests, computation to determine excess | 362. thereof, under Laws 1860, p. 607, c. 360, should

| *In a proceeding for the revocation of a will, be based on the actual duration of the life

the surrogate has no jurisdiction to construe estate and not on the probability of its dura

its provisions.-In re Wilcox's Estate (Sur.) tion at the testator's death.--In re Runk (Sur.)

468. 831.

*Will offered for probate executed by a mark, $ 2. Testamentary capacity.

the attesting witness being dead, admitted to *A will by a drunkard is valid, if at the time probate under Code Civ. Proc. $ 2620.-In re of its execution he knew the nature and dis- Foley's Will (Sur.) 474. position of his estate and his relations to those

*Husband alone held entitled to object to behaving any claim on his bounty.-In re Tifft's Will (Sur.) 362.

quest of more than one-half of wife's estate to

a religious corporation as in violation of Laws Will admitted to probate against the objec- 1860, p. 607, c. 360.-In re Eldredge's Estate tion that testator's testamentary capacity was (Sur.) 1036. affected by his habits of habitual intoxication. --In re Tifft's Will (Sur.) 362.

§ 5. Construction. * Evidence held insufficient to show incompe- , man pending the life of the life tenant his share

Will construed, and on death of remaindertency of testator on account of drunkenness.

passed to his children and the devisees of the In re Feeney's Will (Sur.) 464,

testator free from all claims of his creditors.*Evidence held insufficient to show mental in- Hall v. Senior (Sup.) 29. capacity of testator.-In re Armstrong's Will

*Will construed, and held to show no intent (Sur.) 671.

to charge a legacy on the real estate.-Bankers' $ 3. Requisites and validitv.

Trust Co. v. Dietz (Sup.) 32. The mere fact that the draughtsman of a will Will construed, and held that share of deis made executor or a trustee does not raise any 'ceased grandchild dying after testator without

*Point annotated. See syllabus.

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