TRIAL- Continued.

Conversion when complaint states cause of action for conversion - when
question as to whether moneys were turned over for investment or as loan is for
the jury when written evidence not conclusive.

Sinclair v. Higgins, 206.

Libel-false publication calling plaintiff “a rogues' gallery man" — legal and
express malice distinguished - proof of express malice essential to recovery of
exemplary damages - erroneous charge.

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Carpenter v. New York Evening Journal Pulishing Co., 266.

Attorney and client-proof insufficient to show retainer by wife when brought
in as party defendant in suit against husband — evidence — objection to narration
by witness.

Altkrug v. Horowitz, 420.

Evidence - privilege of communications to physician not waived by taking
deposition of such physician - privilege of physician can only be waived in open
court or by stipulation.

Clifford v. Denver & Rio Grande Railroad Co., 513.

Crime- larceny - admission of evidence of another and unconnected theft by
defendant reversible error confession of defendant to said unrelated theft not
admissible against him.

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People v. Sekeson, 490.

Negligence-complaint - when allegations of injury sufficient to allow proof
of impaired eyesight and varicose veins. when objection to exclusion of evidence
of injuries sufficient.

Rudomin v. Interurban Street Railway Co., 548.

Bills and notes - evidence insufficient to show an indorsement to be without
recourse direction of verdict effect of failure to claim but one question as
proper for jury.

Wood v. Rairden, 303.

Carrier of goods-bill of lading constitutes contract

erroneous charge

- evidence · statements of carrier's servant made after delivery of goods
inadmissible.

Hoffman v. Metropolitan Express Co., 407.

Parties defendant under complaint against joint defendants judgment may
be had against one only - Code of Civil Procedure, section 1205, construed.
Lawton v. Partridge, 8.

Time of trial — it is not necessary to postpone the action until the termination
of an action to recover the stock from said trustee.

Weber v. Wallerstein (No. 1), 693.

Sale-contract to deliver goods F. O. B.- failure to show delivery — question
of admission of delivery in letter is for jury.

Sackett & Wilhelms Lith. & Print. Co. v. Cummins, 300.

Divorce when corespondent appearing in action not entitled to retrial of
issues Code of Civil Procedure, section 1757, construed.

Boller v. Boller, 240.

Negligence-passenger thrown from surface car by sudden jolt and rendered
unconscious when negligence question for jury.

Lomas v. New York City Railway Co., 332.

Evidence- uncorroborated evidence of plaintiff - when truth thereof ques-
tion for jury although defendant gives no evidence.

Mendoza v. Levy, 449.

Assignment parol assignment of written contract when assignee can
recover thereon - erroneous charge.

St. Regis Paper Co. v. Page Lumber Co., 108.

Libel-article insinuating lewd motives to scientist — complaint based on such
article, when not demurrable.

Mac Donald v. Sun Printing & Publishing Assn. (No. 3), 467.

Sale when contract for sale of goods not entire --finding that there was no
"delivery" construed.

Williams v. Wilson & McNeal Co., 442.

TRIAL- Continued.

Conversion-measure of damage when plaintiff not entitled to recover
highest market value- erroneous charge.

Corn Exchange Bank v. Peabody, 553.

Negligence-death by explosion of dynamite - failure to show negligence of
defendant erroneous charge.

Hall v. Cayuga Lake Cement Co., 801.

Preferred cause

when action by receiver of corporation entitled to preference.
Schlesinger v. Gilhooly, 158.

Will charge-when error to charge that jury may find testamentary
incapacity.

Niemann v. Cordtmeyer, 326.

Negligence verdict not excessive.
McGahie v. Sproat, 445.

TRUST.

See PRACTICE.

1. Beneficiary entitled to dividends, issues and profits" of stock in manufactur-
ing corporation - what portion of increase in assets of corporation included under
said terms. A will, creating certain trusts in specific stock of a corporation
manufacturing locomotives, directed the trustees to pay to the use of the bene-
ficiaries the dividends, issues and profits thereof " until the beneficiaries arrived
at the age of thirty years, when the stock itself, with any accumulations or
earnings thereon, was to be paid to the beneficiaries absolutely, or, if dead, to
their issue, etc.

The corporation made large earnings and increased its assets, and finally sold
its entire plant, equipment and materials and was dissolved. In determining what
portion of the total assets of the corporation should be paid to the beneficiaries as
"dividends, issues and profits," and what portion was to be treated as principal,
Held, that at the death of the testatrix the value of the plant, equipment and
materials, good will, patents and patent rights, licenses, trade marks, privileges
and franchises and necessary working capital were to be treated as principal, and
that the balance of the assets, consisting of invested surplus and working cash
capital, should be taken as dividends, issues and profits;"

That a large increase in the value of the assets at the time of sale, made up of
materials and "betterments," was to be treated as principal, being an increase
in the value of the property itself, and should not be treated as a "profit” arising
from or growing out of the stock held in trust;

That the words "dividends, issues and profits," used in the creation of the
trust, must be construed as meaning "income or earnings," and that a large
balance representing good will could not be taken as earnings or increase;

That the value of the material on hand and the "betterments" at the time of
sale should be considered as part of the capital or principal rather than "income
or earnings," so far as the trusts were concerned;

That the question as to whether a sinking fund should have been provided
to make up the loss in value of bonds held by the corporation, owing to a fall in
premium value thereof, was to be determined by the intention of the testatrix, to
be gathered from the terms of the will and from the surrounding circumstances;
and that in the case at issue no such sinking fund was required. Matter of
Stevens, 773.

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2. Trust deed with remainders to heirs of beneficiary when heirs to be ascer-
tained at death of beneficiary — adoption · when adopted child is heir and takes
trust estate to exclusion of brothers of beneficiary. When a deed of trust provides
that after the death of the beneficiary the corpus of the estate shall go "to her
heirs at law," such heirs are to be ascertained, not at the date of the instrument, but
at the death of cestui que trust. Although brothers of such cestui que trust, who
was unmarried at the date of the instrument, may be her heirs at the time of her
death, their rights are subject to be divested if at the death of said cestui que trust
she leaves other heirs entitled to take in preference to said brothers under the
Statute of Descent as existing at her death.

So, too, the rights of such brothers as remaindermen are subject to be divested
if the cestui que trust leave her surviving a lawfully adopted child entitled to
inherit by statute at the date of her decease.

TRUST - Continued.

The right of inheritance is wholly a creation of the statute, and the statutes
giving the right of inheritance to an adopted child are in effect a part of the same
statute under which said brothers claim.

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Hence, although such deed of trust was executed in 1853, at a time when
brothers of the cestui que trust were living and when no statute allowing adoption
or providing for inheritance by an adopted child was extant, nevertheless a child
adopted by the cestui que trust, who survives her, and who, under the Laws of
1873, chapter 830, and by virtue of subsequent statutes, is entitled to inherit from
the foster parent, is heir to the exclusion of said brothers and is entitled to the
trust estate. Legislation on adoption stated. Gilliam v. Guaranty Trust Co., 656.
3. Testamentary trust — life beneficiary of the income and dividends of specific
stock placed in trust is entitled to receive dividends declared thereon. When a testa-
tor puts certain specific railroad stock and bonds, together with all interest
thereon theretofore accrued or thereafter accruing, and every and all dividends
which may be declared on said stock subsequent to the testator's death, in trust
for the benefit of his wife for life, with a direction to the trustees to receive the
income and profits thereof and apply the same to the use of said wife, with
power in the trustees to sell and dispose of any or all of said stock and to invest
and reinvest the proceeds in such securities as to them may seem advisable, and
to apply the income and profits arising therefrom as aforesaid with remainder at
the death of the wife to the heirs of the testator, the wife is entitled to receive
dividends declared on said stock during the period of the trust, and such
dividends are not to be considered as part of the principal. Robertson v.
de Brulatour, 882.

4. Distinction in this respect between trust of specific stock and trust of a fund of
money. There is a settled distinction between a case where specific securities con-
sisting of stock and bonds are bequeathed to a trustee with a direction to pay the
income and profits of such specific securities to a life beneficiary, and a case
where a sum of money is bequeathed to trustees with directions to invest the
same and pay the income of the amount invested to a beneficiary. In the latter
case the trustees are bound, whatever the form of the investment, to preserve
intact the capital of the trust, but where specific securities are put in trust with
a direction that the income and profits thereof be paid to a beneficiary for life,
with a bequest over at the termination of the life estate, the income or profits
received from such securities belong to the life beneficiary and not merely the
income of a specific fund equal in value to the securities at the time of the
testator's death. Id.

5. Dividends are income or profits. The profits or surplus which a corporation
earns or realizes in the management of its business, and which is paid to stock-
holders by way of dividends, whether earned before or after the creation of the
trust, is income or profits which go to the life beneficiary. Id.

6. Subscription rights accruing on such stock go to increase corpus of the trust.
But under a bequest of the income of such specific stock the life beneficiary is
not entitled to the proceeds of the sale of rights to subscribe to new capital
stock issued by the corporation. Such right of subscription is not in the
nature of a dividend or distribution of profits. It is a right which accrues to
the owners of the stock as an incident to its ownership. Hence, such subscrip-
tion rights go to increase the capital of the trust, and the proceeds of a sale of
said rights is part of the capital of the trust. Id.

7. Unnecessary to provide a sinking fund to provide against depreciation in value
of specific securities. When specific stock is put in trust as aforesaid, the trustees
are not entitled to set aside a part of the income as a sinking fund to provide for
any depreciation in the value of the securities. The beneficiary is entitled to
all the income, even though the payment of all such income would reduce the
selling value of the securities. Id.

By

8. Trustees receiving such specific stock entitled to one-half commissions.
virtue of the amendment to section 3320 of the Code of Civil Procedure, made
by Laws of 1904, chapter 755, trustees to whom such specific securities are
bequeathed in trust are entitled to one-half commissions, payable out of the
corpus of the estate, for receiving the principal thereof. The words "All sums
of principal," as used in said section as amended, apply as well to securities
in bulk as to money received.

TRUST-Continued.

It seems, that though such trustees are empowered to sell such specific stock
and reinvest the proceeds, this power would not entitle them to any additional
compensation, the duty being incident to the proper performance of the duties of
the trust. Id.

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9. When life beneficiary entitled to act as trustee — when life beneficiary acting as
trustee entitled to commissions. Although it is a general rule that a beneficiary of
a trust cannot be at the same time a trustee, yet where duties devolve upon
the trustee other than those relating merely to the performance of the trust for
the benefit of the beneficiary, the beneficiary may act as trustee for others inter-
ested in the estate. Where there is an active duty imposed upon the trustee for
the benefit of remaindermen, the life beneficiary can act as trustee, and under
such circumstances the trustee is entitled to commissions, although a life
beneficiary. Id.

10. When beneficiaries consenting to unauthorized loan by trustee not personally
liable to cobeneficiaries. Mere knowledge and consent by a beneficiary to an
unauthorized loan made by a trustee in the absence of fraud or collusion, or the
receipt by the beneficiary of any of the money, is not sufficient to make such
beneficiary liable to reimburse his cobeneficiaries for any loss that may occur.
Hence, beneficiaries of a trust estate who have indorsed notes given to secure
the payment of an unauthorized loan, in the absence of fraud or collusion, or
a receipt by the indoisers of portions of the money loaned, are not personally
liable to their cobeneficiaries for such unauthorized loan except on their
indorsement. Blair v. Cargill, 853.

11. Waiver of objections to and ratification of such loan by cobeneficiaries. More-
over, when, after such unauthorized loan, the other beneficiaries, with knowledge,
have ratified the accounts of the trustee after his decease, they have waived
any objection which they might have made that the loan was unauthorized by
law.

So, too, said cobeneficiaries by failing to appear and object to the unauthor-
ized loan after the service of due notice of an application to discharge the retir-
ing trustee are deemed to have assented to said loan and to have waived its
illegality or the insufficiency of the security. Id.

12. Ratification. Beneficiaries may authorize or ratify that which otherwise
would be a breach of trust. Id.

13. When foreign judgment that note has outlawved is binding here. Under such
circumstances, when the substituted trustee has brought action in another State
to foreclose a mortgage given to secure the unauthorized loan, and it is there
decreed that some of the notes on which the beneficiaries were indorsers have
outlawed, the cobeneficiaries are bound by that determination. Id.

14. Extra allowance denied to beneficiaries, but allowed to accounting trustee.
Beneficiaries who have litigated the above issues as between themselves, should
not be allowed counsel fees or an extra allowance payable out of the estate,
but such allowance to the accounting trustee is proper. Id.

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15. Testamentary trustee — when entitled to commissions. A testamentary trus-
tee is entitled to commissions when he has executed his trust, although he
has for some years paid the income to the beneficiary without deducting his
commissions, and has made no accounting during that period. Such failure to
deduct his commissions is not a waiver of his right thereto. Matter of Haskin,
754.

Executors when executor cannot avail himself of Statute of Limitations on
an accounting.

Matter of Ashheim, 176.

Tax Law - inheritance tax on property of non-resident-when trust funds
passing under power of appointment taxable-when legacy not taxable.

Matter of Lord, 152.

Gift when gift of savings bank deposit is in trust to pay over to beneficiaries.
Mann v. Shrive, 452.

UNDERTAKING.

Other than on appeal.

See BOND,

UNITED STATES CONSTITUTION.

See CONSTITUTIONAL LAW.

[See table of the provisions of the Constitution cited, ante, in this volume.]
UTICA.

See MUNICIPAL CORPORATION.

VENDOR AND PURCHASER.

Will construed-devise of life interest with contingent remainders over
when life tenant cannot compel specific performance by vendee of contract of
purchase.

Webel v. Kelly, 521.

Partnership to speculate in lands—injunction - when carrying out of contract
of sale made by one partner will not be enjoined.

Babcock v. Leonard, 294.

See DEED.

See REAL PROPERTY.

See SALE.

See SPECIFIC PERFORMANCE.

VERDICT.

In negligence cases.

See NEGLIGENCE.

Of a jury.

See TRIAL.

WAIVER.

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Trust when beneficiaries consenting to unauthorized loan by trustee not
personally liable to cobeneficiaries-
such loan by cobeneficiaries when foreign judgment that note has outlawed is
waiver of objections to and ratification of
binding here-extra allowance denied to beneficiaries, but allowed to accounting
trustee.

Blair v. Cargill, 853.

Evidence-privilege of communications to physician not waived by taking
deposition of such physician- privilege of physician can only be waived in open

court or by stipulation.

Clifford v. Denver & Rio Grande Railroad Co., 513.

Membership life insurance association - change of beneficiary under by-laws
-failure of insured to give indemnity on changing beneficiary - indemnity
waived by insurer.

Stronge v. Supreme Lodge, 87.

Suretyship-bond to secure proper performance of contract-
is bound by parol waivers of provisions of contract― estoppel of surety.
Helman v. City Trust, Safe Deposit & Surety Co., 879.

Highway Law-highway commissioners may waive notice of application to
lay out road when public officers may waive statutory provisions.

Matter of Wood, 781.

Contempt proceedings-failure to pay alimony-waiver of right to the
amount granted in judgment.

Compton v. Compton, 923.