785

VERBAL STIPULATIONS:

See STIPULATIONS.

VERDICT

-

Action by an administrator to recover damages for the negligent
killing of his daughter — when a verdict in his favor will not be set aside on the
ground that the damages are excessive.

See BOWLES v. ROME, W. AND O. R. R. Co......
Judgment on, in a Justice's Court,

See JUSTICE OF THE PEACE.

VERIFICATION — Of a pleading.

See PLEADINGS.

PAGE.

VILLAGES — Chapter 504 of 1887, authorizing villages to raise additional
taxes-the power thereby given is independent of and in addition to provisions
made for the raising of such taxes in special charters.] Chapter 504 of 1887
provides that whenever it shall be desired by any village to raise money,
additional to the amount permitted to be raised by its charter, for the purpose
of building a bridge, constructing a sewer or carrying out some other proper
village object, the trustees may call a special election of the tax-paying electors
thereof and submit to them the question of raising such money, and if a
majority of such electors voting thereon shall vote in favor of raising the
money, then the trustees are authorized to raise the same in the manner that
other village taxes are raised and collected.

Section 2 of the said act reads as follows: "The powers conferred by this
act are in addition and supplementary to and independent of all other powers
possessed by villages either under any special act or under the general act for
the incorporation of villages; and when the trustees of any village shall act
under its provisions they shall state in their proceedings that they are taken
under the act of 1887 conferring additional powers upon villages."

Held, that the act confers upon the trustees power to call the special election
independent of and without regard to other powers possessed by the village,
and that the new law, of itself, provides a mode of imposing an auxiliary
municipal tax, independent of the antecedent special acts or charter provi-
sions, whenever it is necessary or desirable to do so, and leaves the trustees
of any village at liberty to put its machinery in operation untrammeled by
previous legislation,

That a notice addressed to the taxable inhabitants, instead of the tax-paying
CARTWRIGHT v. VILLAGE OF SING SING
electors was sufficient.

See MUNICIPAL CORPORATIONS.

VOLUNTARY INJURY — Action for negligence.

no recovery can be had

when the party is injured by his own act, done with the knowledge of what the
result will be.

See HINZ v. STARIN

A party to be guilty thereof must have notice of the danger when acting.
See STONE v. DRY DOCK, E. B. AND B. R. R. Co..

VOLUNTARY PAYMENT:

See PAYMENT

WAGER-Wagering contract-when a complaint will be held to state facts
showing the contract set forth therein to be a wagering contract.] The plaintiff
alleged in his complaint, as a second and separate cause of action, that at
different times, between December 1, 1885, and September 15, 1886, he had
business transactions with the defendant, by which it, in consideration of
commissions paid, and to be paid, to it by him, agreed to deal and traffic
upon the market value of wheat, and that the plaintiff and defendant, between
the dates aforesaid, did deal, traffic and trade upon the market value of wheat,
"in form and manner as follows: The plaintiff gave his several orders for
wheat, amounting in all to forty-six thousand bushels, and paid to the
defendant its commissions for doing this business," the sum of $115; and also
paid to it the sum of $2,535, as margin on the several purchases, to secure it
against any decline of the market-value of wheat between certain dates named,
and as a margin and forfeit to it in case the market-value should decline, the
plaintiff having a right to advance and pay a further margin; that it was a
99

HUN-VOL. XLVI

324

548

526

184

WAGER- Continued.

part of said contract that if the market-value of the wheat should advance, as
to all the wheat ordered, he should be entitled to the advance and, also, to
receive back the marginal advances; that all of the adjustments and settle-
ments of the said transactions between them were to be made, and were made,
and said transactions were based upon the state, condition and fluctuation of
the market-value of wheat; that when the time arrived for the closing of the
several orders the defendant told the plaintiff that the market-value of wheat
had declined, and that all of the said margins paid to it by him had been
exhausted; that the defendant had closed all of the transactions on the basis of
the market, and retained and kept the $2,535, and the said $115, and refused
to pay the same to the plaintiff after demand thereof; that said transactions
were void and illegal under the statute against betting and gaming, and
asked for judgment for the amount paid for commissions and margin above
stated.

Held, that a demurrer interposed by the defendant, upon the ground that
the facts therein stated did not constitute a cause of action, was properly over-
ruled as the contract therein set forth was a wagering contract which violated
the statutes of this State, and was, for that reason, illegal and void.

PECK V. DORAN & WRIGHT CO.......
WAGES-General assignments — preference to wages and salaries due to
employee given by section 29 of chapter 466 of 1877, as amended by chapter 283
of 1886-it is not limited to persons employed at the time of making the assign-
not lost by taking a note for the amount due.
See MATTER OF HEATH

ment

WAIVER - Breach of a condition against assigning a lease without the con-
sent of the lessor does not make the lease void, but only coidable the breach is
waived by the bringing of an action by the lessor to restrain the use of the prem-
ises in violation of a covenant of the lease.

See CHAUTAUQUA ASSEMBLY . ÁLLING.

--

Entry of judgment upon an offer of the defendant· the omission of an
attorney to annex an affidavit as to his authority to make it, is waiced by the
acceptance of it by the plaintiff and the entry of judgment.

See CITIZENS' NAT. BANK ON TOWANDA . SHAW.

WARRANTY - Representation as to the quantity of real estate to be con-
veyed at a sale at auction- -when no warranty, as to the quantity, will be
inferred therefrom.

-

See DENNERLEIN . DENNERLEIN.

WATER COURSES Patents of Governors Nicoll and Dongan, of lands in
Harlem, to the freeholders of Harlem and to the city of New York, respectively-
lands bounded on a creek, over which the waters of the Harlem florced at high-
water, belong to the freeholders and not to the city.

WIFE

See BREEN v. LOCKE..

See HUSBAND AND WIFE.

WILL-Power given to an executor to make partition of the residuary estate.]
1. By the residuary clause of his will the testator authorized, empowered and
directed his executor to partition, divide and apportion all the rest, residue and
remainder of his estate, both real and personal, equally among all his children
living at the time of such partition and division, and the child or children of
such as might then be dead, leaving issue (the latter to take the share their
parent would have taken if living). He also directed his executor to assign,
transfer, set over and deliver to each of the said children the share of person-
alty so apportioned, and to make, execute and deliver to each good and sufficient
deeds of conveyance of the real estate so apportioned to each in fee simple, and
gave, devised and bequeathed to each of his said children the share or portion
of his said estate so to be partitioned and apportioned to them, respectively,
provided, nevertheless, that if any of my children shall die without issue
before such partition and division shall be made. then I give the portion
of such deceased child equally to the brother and sisters of such deceased

PAGE

454

114

582

589

561

291

WILL- Continued.

child; and provided, further, that if any of my said children shall die leaving
issue, then the child or children, who shall be living at the time of such partition
of such deceased child of mine, shall take and have the share or portion which
the parent would have taken if living."

The executor was to make the partition, division and apportionment as soon
after the testator's death as might be practicable, having reference to the con-
dition of the estate, but could not be compelled to make it until after the
lapse of five years from the date of the probate of the will. He was authorized
to take charge of the estate, real and personal, to sell any or all of it, convert
realty into personalty, and to invest and reinvest and erect and repair buildings.
Held, that the validity of the clause was to be determined by the legality
of the ultimate disposition of the corpus of the estate for which the power of
partition and division was given. HENDERSON v. HENDERSON...

...

2. When void as unlawfully suspending the absolute ownership of personal
property.] That, as the share of a child dying before the partition, leaving
issue, was given to those only of such issue who should be living at the time
the partition was made, and the interest of each of such issue was liable to be
divested by his death prior to that event the absolute ownership of the personal
property was unlawfully suspended in violation of the provisions of section 1
of 1 Revised Statutes, 773. Id.

3. -When void for violating the provisions of the statute, as to contingent
remainders created on a term for years.] That the ultimate disposition of the
real estate was also illegal as in violation of the same provision, and also of
section 20 of 1 Revised Statutes, 724, providing that a contingent remainder
should not be created on a term of years, unless the nature of the contingency
on which it is limited be such that the remainder must vest in interest during
the continuance of not more than two lives in being, at the creation of such
remainder, or upon the termination thereof. Id.

4. - Legacy to a town, to be used in the erection of a town hall-construc
tion of the terms of the will as to the uses to which the building may be put.]
Henry Morgan, of the town of Franklinville, died in 1881, leaving a will by
which he gave and devised all the rest and residue of his estate to the town of
Franklinville, to be expended in the erection of a building in the village of
Franklinville, in said town, and also for the purchase of a proper site for the
same, the said building to be named and known as the Morgan Hall, and to be
at least two stories in height, the lower floor of which to be forever used as a town
hall, and office for said town in its corporate capacity, and the upper floor, or
floors, thereof to be used for offices, of a character least likely to injure said
building, said offices to be rented to respectable and responsible persons," the
rents to be used in insuring and repairing the said building and paying any
taxes that it might be liable to pay. The will further provided that the lot
should be conveyed to the town, and that the building was "to be at all times
under the control, care and custody of the same town officers as are authorized
to have the control, care and custody of town halls erected by towns under the
authority of an act of the legislature of this State."

After the death of the testator, commissioners acting under an act of the
legislature empowering the town to take and hold the legacy, received from
the executors $8.674.46, and from money raised by the town, $7,000, and pur-
chased a site and erected a building. Thereafter a balance, found to be due to
the town on the settlement of the accounts of the executors of Morgan, was
paid to the defendants, who were the officers entitled by law to the care and
custody of the building. They having rented one of the rooms on the lower
floor to the postmaster, to be used as a post-office for that locality, were about
to pay out most of this money on a contract which they had made with another
party to fit up a room with letter boxes and other customary conveniences.
such as are commonly used in a post-office, when the plaintiff's brought this
action, as taxpayers to restrain them from paying out this money for that

purpose.

Held, that the action could not be maintained, as the proposed action of the
defendants did not violate any of the conditions or restraints imposed by
the donor upon the uses and purposes to which the lower floor of the building
could be devoted.

PAGE.

509

WILL- Continued.

That, as it appeared that ample and sufficient rooms for the use of the town
officers had been set apart on the lower floor, the proposed use of the rooms in
question and the hall-way leading to them, did not deprive the citizens of the
town or its officers of any of the special uses contemplated by the donor.
BUTTON. ELY....

5. When a testator will be held to have charged the payment of his debts
upon his real estate.] Hiram Smith died May 14, 1883, leaving a will by
which he gave, after all his just and lawful debts were paid and discharged,
to his wife one equal third of all his personal property, and the use or income
of one-third of his real estate during her natural life, and the residue and
remainder of his real and personal property to his son George R. Smith, one-
half of the same to him, his heirs and assigns, absolutely, and the other half
in trust for the benefit and maintenance of the testator's daughter, and con-
ferred upon George, as executor or trustee, full power and authority to sell,
transfer and convey, mortgage or lease any of the property, and to invest the
same as to him might seem most judicious.

In November, 1883, the widow and daughter conveyed to George their
interest in certain mill premises, and the water privileges appurtenant thereto
owned by the testator, and released him from all their claims against him, as
executor and trustee, he agreeing to pay all incumbrances on the real estate
and the debts due by the testator at the time of his death. These debts
exceeded $30,000, which his personal estate was not sufficient to pay, and
of which indebtedness $23,000 remains unsecured and unpaid.

Thereafter, and in March, 1884, George assigned all his interest in the sum
of money which might be awarded to him in these proceedings, instituted
early in 1884 by the city of Rochester, to acquire the right to take water
from the lakes which supplied the mill premises owned by Hiram Smith, to
one Hamilton, to secure the payment of an amount then due to the latter, and
for future advances to be made by him, and thereafter, and in December,
1884, George made to Hamilton a general assignment for the benefit of his
creditors.

Held, that the testator intended to make his debts a charge upon his real

estate.

That the three years bar of the statute relating to proceedings to apply the
proceeds of real estate of a testator to the payment of his debts did not apply.
That the amount awarded by the commissioners should be paid to the
executors of the estate of Hiram Smith and not to Hamilton.

MATTER OF CITY OF ROCHESTER.

-

PAGE.

100

.... 651

6. Construction of a derise to a wife for her life with a power of dis-
posal collateral inheritance tax 1885, chap. 483, as amended by chapter 713
of 1887.] William Cager died leaving a last will and testament by which he
gave, devised and bequeathed all his estate, both real and personal, after his
lawful debts were paid and discharged, to his wife, to be used and enjoyed
and at her disposal during the term of her natural life," and gave and devised
one-third of his real estate and personal property "that may remain at the
decease of my (his) wife, Mary Cager, to my adopted daughter, Mary Griffin,
that is to say, the use of said one-third during her natural life," the remainder
being given to the children of the said Mary Griffin.

Upon an appeal from a decree of the surrogate confirming the report of an
appraiser appointed pursuant to chapter 483 of 1885, to determine the tax that
should be paid upon the legacies and collateral inheritances, i. e., upon the life
estate of the adopted daughter and the estates in remainder of her children.

Held, that the testator gave to his wife more than a life estate in the prop-
erty, both real and personal, under the first clause of the will, and that the
same may be something less than the absolute ownership or unconditional
power of making disposition of the same.

MATTER OF SURROGATE OF CAYUGA COUNTY...

7.- An assessment of the estate in remainder cannot be made during her
lifetime. That the devisees and legatees named in the second and third
clauses of the will, whose interests were subject to the life estate in the testa-
tor's wife, were given so much of the estate of the testator as remained undis-
posed of and reserved by the widow during her lifetime, and such estates in

657

789

WILL- Continued.

remainder were not capable of ascertainment and assessment for the tax during
the lifetime of the testator's wife.

That in disposing of this appeal it was not necessary to determine the nature
and character of the limitations, if any, which may be imposed on the widow
in the use and enjoyment of the corpus of the estate as the right to impair and
diminish the same, for any purpose whatever, renders the assessments under
the act premature during her lifetime.

That the order should be reversed in all respects. Id.

PAGE.

8. Validity of a contingent disposition of a fund, given to a person, upon
his death without issue.] George A. Hern, by the seventh clause of his will,
gave and bequeathed to the defendant the sum of $100,000, in trust, to invest
the same, and keep it invested, and apply the interest and income to the use
and benefit of his daughter, Eliza W. Graham, during her natural life, and
directed that, upon her death, this sum of money should be divided into two
equal shares or parts, and gave and bequeathed one of such shares or parts
to the plaintiff, Lillie Graham, the daughter of the said Eliza W. Graham,
subject to a provision contained in the eighth clause of the will, which directed
that in case any share or interest in his estate should, under the said seventh
clause, vest in the said Lillie Graham, and she should thereafter die intestate in
respect to such share or interest during the lifetime of Augustus C. Graham,
and without lawful issue born in wedlock then living, then, and in that case,
the share or interest of such grandchild so dying should go to the testator's
son, if living, or to his issue, and if none of such issue were then living, then
to the sister of the testator's wife and their issue. After the death of the life
tenant, Eliza W. Graham, the plaintiff brought this action against the defend-
ant to recover one-half of the said fund.

Held, that she was entitled to recover it.

That the contingent disposition of the fund, made by the provision contained
in the eighth clause, was not repugnant to the gift to the plaintiff contained in
the seventh clause.

9.

That while the title acquired by the plaintiff was a qualified one, and
defeasable upon the contingency named in the eighth clause of the will, she
was, neverthe- less, upon the death of the tenant for life, entitled to receive
the money from the defendant. GRAHAM v. N. Y. LIFE INS. & T. Co...... 261
Legacy to the brothers and sisters of the testator-
distributively as tenants in common and not as a class.] A testator, after direct-
when they take
ing his executor to convert his estate into money and pay off all his debts
and liabilities, bequeathed one-half of all the money so realized to his widow,
and further provided as follows: "I give and bequeath to my brothers,
Philip and Charles, and my sisters, Euphemie, Agnes and Elizabeth, the
residue and rest of all moneys so realized, after all dues have been paid, it
constituting the half moneys aforesaid. My brothers, Philip and Charles, and
sisters, Euphemie, Agnes and Elizabeth, to share and share alike."

Held, that each brother and sister took distributively as a tenant in common,
and that the shares of the two sons, who died before the testator, lapsed and
went to the widow, under section 75 of article 3 of title 3, chapter 6 of
part 2 of the Revised Statutes, and not to the sisters. MUIR v. WILSON...... 555
Proof of the capacity of a testatrix to execute a will—when the testi-
mony of physicians signing the will at her request is admissible ·
Procedure, 834- an objection as to the testatrix's age must state the specific
-Code of Civil
defect with certainty.

See MATTER OF FREEMAN

Power of a surrogate to amend a citation
§ 723-the recitals in a decree admitting a will to probate do not estop a party
Code of Civil Procedure,
to it from petitioning to have the decree revoked –
to dismiss a petition presented under section 2647 of the Code of Civil Pro-
-an order denying a motion
cedure, that the probate be revoked, is not appealable.

widow

See MATTER OF SOULE

Gift of legacies subject to a life interest in the estate given to the testator's
-the payments made for repairs, taxes and interest on mortgages on a
homestead farm, which the widow is given a right to occupy for life, are to be
paid from the income and not from the estate.

See MATTER OF ALBERTSON

458

661

566