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.
20. Testator bequeathed all his estate to his wife for life, with the "right to use as she may choose, except that I give and be- queath to our adopted daughter, J.. the sum of $1,600, for her to have and to use her natural life, the same to pass to her chil-possession at a future day, and were clas- dren after her decease, provided they live to the age of twenty-one years, if they should die before that age, then, at the death of said J., this legacy shall revert to the estate." Testator's next of kin were nieces and nephews. Held, that the wid- ow took the property with power to dis- pose of it, except the legacy to the adopt- ed daughter.-Rood v. Watson, 7 N. Y S.
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.
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.
25. Testator devoted part of his estate to the creation and maintenance of a musical 28. Testatrix in her will provided as fol- college, for which he directed his three ex-lows: "After all my lawful debts are paid ecutors to apply to the legislature for a and discharged, I give and bequeath to charter; and, in case of the death of the Mary F. Emerson * * my house and longest lived of the three before the charlot in the village of Dundee, if I am pos- ter should be granted, he gave the fund in sessed of one at my death; or, if I am not trust to the city of New York for certain possessed of one, I order my executor *** purposes. Held, that the bequest was void, to pay to the said Mary F. Emerson $2,000, under the law forbidding perpetuities.-on condition," etc. After sundry money People v. Simonson, 7 N. Y. S. 861.
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.
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.
payable to his wife, and another, of $5,000, | ally or as executor to pay the legacy, which payable to his executors. Held, that the fund in reserve" was the additional $10,- 000, and not the $40,000, and that the widow, by electing to stand by the will. did not relinquish her right to the $10,000 insurance money, as being money be queathed by the testator, which was not his own. In re Hayden's Estate, 7 N. Y.
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.
See, also, Deposition; Evidence. Fees, see Costs, 11.
Privileged communications-Attor-
1. In an action by the grantor's widow to 31. Where a will directs the investment have an absolute deed declared a mort- of a sum sufficient to produce a certain an-gage, though the testimony of the grantor's nuity, which the executors are to pay to testator's widow, a release executed by the widow to part of the executors, from all claim on them either as executors or indi- viduals on account of the annuity, past or future, does not operate to reduce the an- nuity, but only to discharge the released executors from liability.-Cocks v. Havi- land, 7 N. Y. S. 871.
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.
34. The fact that a devisee of land was also appointed executor, and accepted the trust, did not make him personally liable 6. Under Code Civil Proc. N. Y. § 835, for a legacy, nor create a charge on the de- prohibiting attorneys from testifying as to vised land, as he was not directed person-communications by clients in the course of
business, an attorney cannot testify as to gage, defendant's evidence as to a conver- any act or word of his client on the sub-sation between herself and the grantor ject of his will or its execution.-In re with reference to the transaction, which O'Neil's Estate, 7 N. Y. S. 197.
7. The testimony of an attorney that he drew a deed in controversy, and counseled plaintiff in regard to the subject matter thereof, is inadmissible, except so far as it relates to the fact that he drew the deed. Barry v. Coville, 7 N. Y. S. 36.
conversation was testified to by plaintiff, was admissible under the exception of Code Civil Proc. N. Y. § 829, providing that a party interested in an action shall not be examined as a witness in his own behalf against a person deriving his interest or title from a deceased person, concerning a transaction or communication between the witness and the deceased person, except where the person so deriving interest or way v. Sidway, 7 N. Y. S. 421.
8. Code Civil Proc. N. Y. & 834. which declares that a physician shall not be al-title is examined in his own behalf.-Sid. lowed to disclose information which he has acquired while attending a patient in a professional capacity, applies where the physician is called as a witness in pro- ceedings for the probate of a will.-In re Connor's Will, 7 Ñ. Y. S. 855.*
9. An attending physician can testify as to the declarations of a patient as to mak- ing a will, and his advice on that subject. -In re O'Neil's Estate, 7 N. Y. S. 197.* Transactions with decedents.
13. Under Code Civil Proc. N. Y. § 829, providing that a party shall not be exam- ined as a witness in his own behalf con- cerning a personal transaction or com- munication between the witness and a de- ceased person, except where the testimony of the deceased person is given in evidence concerning the same transaction or com- munication, a cross-examination of the de- fendant concerning the meaning of state- ments contained in a letter written by him to one of the plaintiffs, who has since died, does not render defendant competent to testify to a conversation between him and the plaintiff, preceding the writing of the letter, and which caused it to be written.- Weston v. Reich, 7 N. Y. S. 784.
14. The husband of the contestant of a will having testified for her on the trial be- fore the surrogate, and contestant having died thereafter, this testimony of the hus- band, though he became interested in the result of the action by his wife's death, may be read on the trial at the circuit, un- der Code Civil Proc. § 830, providing that where a party has died since the trial of an action, decedent's testimony, or that "of any person who is rendered incompetent by the provisions of the last section, taken or read in evidence at the former trial," may be given in evidence at a new trial.- In re Budlong, 7 N. Y. S. 289.
10. Code Civil Proc. N. Y. § 829, provides that on the trial of an action a party or person interested in the event shall not be examined as a witness in his own behalf or interest, against a person deriving his title or interest from, through, or under a dece- dent, by assignment or otherwise, concern- ing a personal transaction or communica- tion between the witness and decedent. In an action to enforce specific perform- ance of an oral agreement with a decedent to convey land against decedent's grantee, it appeared that decedent was plaintiff's father, and that, in the presence of his wife, and plaintiff and his wife, the latter two being seated together, he had turned to them and said: "My son, I give you the farm. I want you to go on it and live. You may have all you make of it. Fix it up, and when I die it shall be yours; but I will keep the title while I live, that you may neither burden or lose it during my life-time;" that plaintiff assented thereto; and that his wife said nothing, because the father disliked her, and she feared that he would change the arrangement if she spoke. Held, that plaintiff's wife was a party to the transaction, though not named in the agreement, as the arrangement was 16. Although a question does not appear a family affair, and the farm was intended to be obnoxious to Code Civil Proc. N. Y. to be a home for plaintiff and his family.-§ 829, providing that a party shall not be Erwin v. Erwin, 7 N. Y. S. 365.
11. Plaintiff's wife, in such case, is inter- ested in the event of the action, within section 829, because of her inchoate right of dower in the land, which would attach on recovery of a judgment by plaintiff.- Erwin v. Erwin, 7 N. Y. S. 365.
12. In an action by the grantor's widow to have an absolute deed declared a mort-
15. Testimony of the widow of a testa- tor as to the contents of letters written by her to a contestant of the will at the in- stance of the testator is not testimony as to transactions with decedents, forbidden by Code Civil Proc. N. Y. § 829.-In re Budlong, 7 N. Y. S. 289.
examined as to transactions had with a de- cedent, yet it is properly excluded when a previous answer to substantially the same question is incompetent.-Sallade v. Ger- lach, 7 N. Y. S. 181. Examination.
17. In an action for injuries received by plaintiff by being thrown from defendant's
car, where the driver had testified for de- | complaint.-Chellis v. Chapman, 7 N. Y. fendant that he was taking his car down S. 78. as he usually did, plaintiff was properly al- lowed to ask him if he usually walked his horses across J. street, and also to cross- examine him on his schedule time.-Mur- ray v. Brooklyn City R. Co., 7 N. Y. S. 900. 18. Where defendant has testified that
when he was about to erect a stable al- leged to constitute a nuisance plaintiff said it was "all right," plaintiff may be allowed to answer a direct question, and state that he did not say it.-Robinson v. Smith, 7 N. Y. S. 38.
See, also, Arrest; Attachment; Certiorari; Execution; Garnishment; Habeas Corpus; Injunction; Mandamus; Replevin. Supplemental summons, see Parties, 4. Service on non-residents.
1. Under Code Civil Proc. N. Y. § 435. providing that an order for the service of a summons on a defendant residing within the state may be made on satisfactory proof that proper and diligent effort has been made to serve the summons on the 19. Where a witness testifies as to a for- defendant, and that the place of his so- mer statement, "I might have sworn to it," journ cannot be ascertained, or that, if he the party calling him cannot ask, "If you is within the state, he avoids service, so did so swear, was it true?" as the effect of that personal service cannot be made, such such question is to discredit his own wit- substituted service cannot be had on a de- ness.-Morris v. Wells, 7 N. Y. S. 61. fendant who is absent as a theatrical man- 20. Plaintiff may contradict the state-ager, and whose location at any time can ment of a witness for defendant, even be ascertained, and who is attending to his though such statement is made on plain- business without any attempt to avoid tiff's cross-examination of the witness.service.-Ottman v. Daly, 7 N. Y. S. 897. Darragh v. Ross, 7 N. Y. S. 864. 2. It can make no difference that if such
21. Defendant may be asked on his cross-service is not allowed the statute of limita- examination to explain statements in his tions will run against the action.-Ottman testimony contradicting his answer to the v. Daly, 7 N. Y. S. 897.
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