legacies, with a residuary clause giving all
the residue of testator's property to his
daughter, property bequeathed to a son for
life, with remainder to the son's surviv-
ing children. passes, under the residuary
clause, on the son's death without issue
after the daughter's death.-In re Mapes'
Estate, 7 N. Y. S. 872

Construction-Nature of estate.

| band by "my three children conjointly,"
and appointed K. executrix. Held, that
plaintiff, having married, took a base or
conditional fee in the undivided one-third
of the real estate, and of the personalty
mentioned in the third clause, defeasible
by her death without issue, before the
death of her brother or sister.-Beck v.
Ennis, 7 N. Y. S. 264.

212.

21. Testatrix gave her husband all her
property on condition that he execute to
testatrix's daughter, E., a bond and mort-
gage of certain of the property, "to secure
the payment of $2,000 to my said daughter,
should my said husband marry again.
It is my will that if my beloved
husband remain single he shall enjoy the
benefit of the property given, devised,
and bequeathed as above for and during
his natural life, and from and immediately
after his decease I devise and bequeath
the said property to my beloved daughter,
E., and her heirs forever." Held, that the
husband had a life-estate in all the proper-
ty on condition that, in case he remarried,
he execute the mortgage for the payment
of $2,000 to the daughter.-Greenhalgh v.
Marggraf, 7 N. Y. S. 728.

22. Testatrix bequeathed to plaintiff, her
daughter, certain personal property, and
of the residue of her property, consisting
of a farm and personalty, she gave one-
half to plaintiff, if she should remain un-
married, and the other half in equal shares
to the other two children, but in case of
plaintiff's marriage it should be equally di-
vided between the three children. The
third clause of the will was as follows: "If
my daughter K. [plaintiff] should marry,
and die without children, or die previous
to her brother and sister, then the property
given or bequeathed her shall revert to her
brother B. and her sister C., or their heirs.
and to share alike." Later in the will tes-
tatrix provided: "By this I intend that the
bequest to K., circumstanced as above
stated, shall pass," etc. The fourth clause
provided that these bequests were condi-
tioned on the support of testatrix's hus-

23. The Revised Statutes of New York
abolished the distinction between execu-
tory devises and contingent remainders,
and included both under estates in expect.
ancy, which included future estates. These
were defined as limited to commence in
sified as vested and contingent; the latter
being limited to or upon some uncertain
person or event. A will, after making
various provisions, contained the follow-
ing clause: “Thirty-Fifth. Irequest my said
executors and trustees to obtain ***
an act of incorporation of an institution to
be known as the Tilden Trust,' with ca-
pacity to establish and maintain a free
library and reading-room, * * * and to
promote such scientific and educational ob-
jects as my said executors and trustees
may more particularly designate. * * *
In case said institution shall be incorpo-
rated in a form and manner satisfactory to
my said executors and trustees." within
two lives in being, “I hereby authorize my
said executors and trustees to organize the
said corporation, designate the first trus-
tees thereof, and to convey to, or apply to
the use of, the same, the rest, residue, and
remainder of all my real and personal es
tate not specifically disposed of,
or so much thereof as they may deem ex-
pedient." subject to the special trusts
therein created. "But in case such insti-
tution shall not be so incorporated" with-
in the times mentioned, "or if my said ex-
ecutors and trustees shall deem it inexpe-
dient to convey said" residue. "or any part
thereof, or to apply the same, or any part
thereof, to the said institution, I authorize"
them to apply it, "after making good the
said special trusts herein directed to be
constituted, *
* to such charitable,
educational, and scientific purposes as in
the judgment of my said executors and
trustees will render the rest, residue, and
remainder of my property most widely and
substantially beneficial to the interests of
mankind." Held, that this clause was not
an executory devise, as the beneficiary took
nothing by virtue of the will itself, but
only by the acts of the trustees, who had
power to determine whether it should be
benefited at all or not, and as the portion it
was to take was uncertain; but that it cre-
ated a trust, or conferred on the executors
and trustees a power in trust.-Tilden v.
Green, 7 N. Y. Ŝ. 382.

*

Perpetuities.

24. Testator, by his will, made his three
executors trustees to create and maintain a
benevolent institute, directing them to vest
in it all his property not otherwise dis
posed of, and to apply to the legislature for
a charter of incorporation; "and, in case
said charter shall not be obtained within
the life of the longest liver of my execu-
tors," then over to the city of New York,
to be strictly devoted to the charitable uses
declared in the will. Held, that both the
primary and substituted gifts were void
because limited on three lives, in violation
of the statute against perpetuities. In re
Wood's Estate, 7 N. Y. S. 836.

Rights of devisees and legatees.

27. A testator, after giving certain prop-
erty to his wife, gave his farm and the rest
of his personal property to his children,
providing that all advancements made to
his children, as shown by his books, should
be charged up against their several inter-
ests in division of the estate. Two years
after the will was made, the testator en-
tered on his books against the accounts of
three of his children a memorandum of a
settlement in full of advancements made
to them. Held, that no advancements
were chargeable to either of them on the
division of the property, but they took
their shares without deduction.-Webster
v. Gray, 7 N. Y. S. 266.

*

黃

*

*

*

*

26. A testator, after making various be-
quests, appointed three of his sons execu-
tors of his will and trustees of his estate,
and declared: "I direct that my said trus-
tees shall take and hold my said property
and estate * * * for a period of six
years from and after my decease, the estate
being chargeable with the foregoing be-
quests and legacies. *After the
payment of said legacies, said property and
estate shall be managed for the benefit of
my said three sons,
who shall
annually render to each other" a statement
of the rents and profits, and of all transac-
tions relating to such estate; and "at the
expiration of the said six years the rest and
residue of my estate, real and personal,
*** shall belong to my said sons, ***
share and share alike." There was also a
clause forbidding partition of the estate
so devised and bequeathed to my three
sons in trust, as aforesaid, until the expira-
tion of six years;" and providing that, "in
case either of said three sons" shall at-
tempt to partition or divide the land, he
shall forfeit all claim to the estate. The
last clause of the will authorized the “said
three sons" to mortgage the real estate in
order to pay the legacies. Held, that it
was not testator's intention to vest the title
in his sons as trustees, thus suspending the
power of alienation in violation of the law
against perpetuities, (1 Rev. St. N. Y. p. 723,
15;) but he intended them to be tenants
in common of the estate, and absolute own-
ers thereof, subject to the charge of the
payment of legacies.-Greene v. Greene, 7
N. Y. S. 30, 284.

66

bequests, the will continued: "I order that
in case my estate exceeds the amount of
the above bequests to each individual,
then my executor must pay to the above
persons the excess in the proportion as
the amounts of the bequests are to the
whole amount," etc. Held, that Mary F.
Emerson was a residuary legatee, and en-
titled to share with the other beneficiaries
in any moneys remaining undistributed aft-
er the payment of the particular legacies.
-In re Hoover's Estate, 7 N. Y. S. 283.

* *

*

*

*

*

29. Testator bequeathed to his wife, dur-
ing her life, $40,000, “including the pro-
ceeds of any and all insurance policies on
my life, payable to her or otherwise." He
directed the sum to be invested, and the
income paid to her. After giving her the
homestead and certain personalty, he pro-
ceeded: "The foregoing bequests and de-
vises
are in lieu of dower, but, if
the use and income thereof shall be insuf-
ficient for her reasonable support,
my executors shall pay any deficiency from
any other property. Later, the will di-
rected that the executors hold in reserve
at least $10,000 during the life of the wife,
and pay her such part as might be needed
for her comfortable support, and that the
residue of the income be paid to the resid
uary legatee. The will then proceeded:
"I direct that the principal of such fund in
reserve shall, after the death of my wife,"
become a part of the residuary legacy. He
then gave "all the rest, residue, and re-
mainder of my property in three equal
shares," etc. The wife was made one of
the executors. Testator had three policies
of life insurance, amounting to $10,000,

was simply given to the legatee generally,
with no direction to any one to pay it.-
Smith v. Atherton, 7 N. Y. S. 300.
Action to construe will.

S. 313.

30. A testator bequeathed to his wife, for
life, one-third of the use and income of his
land, without alluding to taxes and other
expenses, and directed his executors to
lease the remaining two-thirds, and out of
the rents "to pay all taxes, expenses, and
repairs, and all other charges thereon,"
and to divide the residue between his chil-
dren, for life, "and, after their death. I do
devise and bequeath the same to their heirs,
in fee, forever." Held, that the widow was
entitled to one-third of the rents and prof-
its, undiminished by taxes or other ex-
penses. Starr v. Starr, 7 N. Y. S. 580.

35. Under Code Civil Proc. N. Y. § 1866.
which provides that an action may be
maintained to determine the validity, con-
struction, or effect of a testamentary dis-
position, the sister and heir at law of a tes-
tator, who is not a beneficiary, but who
contests the validity of a devise, cannot sue
in equity for a construction of the will.-
Ruppel v. Schlegel, 7 N. Y. S. 936.

WITNESS.

See, also, Deposition; Evidence.
Fees, see Costs, 11.

Privileged communications-Attor-

neys.

32. Rev. St. N. Y. p. 749, § 4, (3 Rev. St.,
7th Ed., p. 2205) providing that, whenever
any real estate subject to a mortgage exe-
cuted by a testator shall pass to a devisee,
the latter shall satisfy the mortgage out of
his own property, in the absence of a con-
trary express direction in the will, does not
apply to a mortgage executed by a testator
to indemnify the mortgagee from liability
for accommodation indorsements to be
made by him; and a note on which the
mortgagee becomes indorser, and which the
mortgage is assigned to secure, is payable
out of the testator's personalty.-Cochrane
v. Hawver, 7 N. Y. Š. 907.

Rights of devisees and legatees -
Charge on specific devise.

33. A general legacy is not charged on
land devised specifically by a former clause
of the will, simply from the fact that the
devisee is also made executor and legatee
of the residuum of the estate (which con-
sists entirely of personalty) after all claims
against the estate are paid.-Smith v. Ath-
erton, 7 N. Y. S. 300.

counsel, that the grantor told him that he
had a great deal of money from defendant,
and requested him to prepare the deed,
may be a disclosure of a privileged com-
munication, its admission is not prejudicial
to plaintiff.-Sidway v. Sidway, 7 Ñ. Y. S
421.

2. A notary is not incompetent to testify
as to where an acknowledgment of a deed
was taken, though he was also employed
by the grantor as attorney to draw the deed.
as such testimony does not disclose pro-
fessional communications, within the pro-
hibition of Code Civil Proc. N. Y. § 835.-
Mutual Life Ins. Co. v. Corey, 7 N. Y. 8.
939.

3. Compelling defendant, in an action
for breach of marriage promise, to testify
whether he gave to his counsel all the let
ters received from plaintiff, is not prohib-
ited by Code Civil Proc. N. Y. § 835, which
prescribes that the attorney "shall not be
allowed to disclose a communication made
by his client to him, or his advice given
thereon, in the course of his professional
employment. "-Chellis v. Chapman, 7 N.
Y. S. 78.

4. Under Code Civil Proc. N. Y. § 836,
allowing a person to waive the right of
having his communications with his coun-
sel kept secret, a party may call his coun-
sel to testify to conversations between
them.-Smith v. Crego, 7 N. Y. S. 86.

5. A communication to his counsel by
one party, in the presence of the other, is
not privileged.-Smith v. Crego, 7 N. Y. S.
86.