first in order shall fail to vest the next in succession may be substituted for it and take effect accordingly.

SEC. 1027. REMAINDER TO HEIRS. Where a remainder shall be limited to the heirs or heirs of the body of a person to whom a life estate in the same premises shall be given, the persons who, on the termination of the life estate, shall be the heirs or the heirs of the body of such tenant for life shall be entitled to take in fee simple as purchasers by virtue of the remainder so limited.

Remainder to

heirs.

Posthumous

SEC. 1028. POSTHUMOUS CHILDREN.- -Where a future estate shall be limited to heirs, or issue, or children, posthumous children shall be children. entitled to take in the same manner as if living at the death of their parent; and a future estate depending on the contingency of the death of any person without heirs, or issue, or children shall be defeated

by the birth of posthumous child of such person.

SEC. 1029. EXPECTANT ESTATES NOT TO BE DEFEATED.No expec- Expectant estant estate can be defeated or barred by any alienation or other act of tates not to be dethe owner of the intermediate or precedent estate, nor by any destruc- feated. tion of such precedent estate, by disseizin, forfeiture, surrender, merger, or otherwise, except when such destruction is expressly provided for or authorized in the creation of such expectant estate; nor shall an expectant estate thus liable to be defeated be on that ground adjudged void in its creation.

Expectant es

SEC. 1030. EXPECTANT ESTATE ALIENABLE.-Expectant estates shall be descendible, devisable, and alienable in the same manner as estates tate alienable. in possession.

Tenancies in

SEC. 1031. TENANCIES IN COMMON AND JOINT TENANCIES.-Every estate granted or devised to two or more persons in their own right, common and joint including estates granted or devised to husband and wife, shall be a tenancies. tenancy in common, unless expressly declared to be a joint tenancy; but every estate vested in executors or trustees, as such, shall be a joint tenancy.

SEC. 1032. ESTATES FOR YEARS. -An estate for a determinate period of time is an estate for years.

SEC. 1033. ESTATES FROM YEAR TO YEAR. An estate expressed to be from year to year shall be good for one year only.

SEC. 1034. ESTATES BY SUFFERANCE. -All estates which by construction of the courts were estates from year to year at common law, as where a tenant goes into possession and pays rent without an agreement for a term, or where a tenant for years, after the expiration of his term, continues in possession and pays rent and the like, and all verbal hirings by the month or at any specified rate per month, shall be deemed estates by sufferance.

Estates for

years.

Estates from year to year.

Estates by sufferance.

SEC. 1035. ESTATES FROM MONTH TO MONTH, AND SO FORTH. -An Estates from estate may be from month to month or from quarter to quarter, or, as month to month, otherwise expressed, it may be by the month or by the quarter, if so expressed in writing.

SEC. 1036. ESTATES AT WILL.-An estate at will is one held by the joint will of lessor and lessee, and which may be terminated at any time, as herein elsewhere provided, by either party; and such estate shall not exist or be created except by express contract:

etc.

Estates at will.

Provided, however, That in case of a sale of real estate under mort- -conveyance gage or deed of trust or execution, and a conveyance thereof to the under mortgage, etc., sale, grantor purchaser, the grantor in such mortgage or deed of trust, execution deemed tenant at defendant, or those in possession claiming under him, shall be held and will, etc. construed to be tenants at will, except in the case of a tenant holding under an unexpired lease for years, in writing, antedating the mortgage or deed of trust.

Powers.

Definition.

General power.

Special power.

Beneficial

power.

er

Effect of abso

estate.

SUBCHAPTER TWO.

POWERS.

SEC. 1037. DEFINITION.-A power is an authority to do some act in relation to lands or the creation of estates therein or of charges thereon which the owner granting or reserving such power might himself lawfully perform.

SEC. 1038. GENERAL POWER.-A power is general where it authorizes the alienation in fee, by means of a conveyance, will, or charge, of the lands embraced in the power to any alienee whatever. SEC. 1039. SPECIAL POWER.-A power is special—

First. Where the persons or class of persons to whom the disposition of the lands under the power is to be made are designated.

Second. Where the power authorizes the alienation, by means of a conveyance, will, or charge, of a particular estate or interest less than a fee.

SEC. 1040. BENEFICIAL POWER. A general or special power is beneficial where no person other than the grantee has, by the terms of its creation, any interest in its execution.

SEC. 1041. EFFECT OF ABSOLUTE POWER TO OWNER OF PARTICULAR lute power to own- ESTATE. Where an absolute power of disposition, not accompanied by of particular any trust, shall be given to the owner of a particular estate for life or years, such estate shall be changed into a fee, absolute in respect to the rights of creditors and purchasers but subject to any future estates limited thereon in case the power should not be executed or the lands should not be sold for the satisfaction of debts.

Effect of such

power to one without particular estate.

Effect where no

SEC. 1042. EFFECT OF SUCH POWER TO ONE WITHOUT PARTICULAR ESTATE. Where a like power of disposition shall be given to any person to whom no particular estate is limited, such person shall also take a fee, subject to any future estates that may be limited thereon but absolute in respect to creditors and purchasers.

SEC. 1043. EFFECT WHERE NO REMAINDER ON PARTICULAR ESTATE.remainder on par- In all cases where such power of disposition is given and no remainder is limited on the estate of the grantee of the power, such grantee shall be entitled to an absolute fee.

ticular estate.

SEC. 1044. CONSTRUCTION OF POWER TO PARTICULAR TENANT TO DEVISE THE INHERITANCE. -Where a general and beneficial power to devise the inheritance shall be given to a tenant for life or for years, such tenant shall be deemed to possess an absolute power of disposition, within the meaning and subject to the provisions of the three last preceding sections.

SEC. 1045. RIGHT OF GRANTOR TO RESERVE POWER. The grantor in any conveyance may reserve to himself any power, beneficial or in trust, which he might lawfully grant to another, and every power thus reserved shall be subject to the provisions of this subchapter as if granted to another.

SEC. 1046. LIABILITY OF BENEFICIAL POWERS IN EQUITY.--Every special and beneficial power shall be liable, in equity, to the claims of creditors, and the execution of the power may be decreed for the benefit of the creditors entitled.

SEC. 1047. GENERAL POWERS IN TRUST.- A general power is in trust when any person or class of persons other than the grantee of such power is designated as entitled to the proceeds, or any portion of the proceeds or other benefits to result from the alienation of the lands, according to the power.

SEC. 1048. SPECIAL POWERS IN TRUST.-A special power is in trust— First. When the disposition which it authorizes is limited to be made to any person or class of persons other than the grantee of such power.

Second. When any person or class of persons other than the grantee is designated as entitled to any benefit from the disposition or change authorized by the power.

Trust powers im

SEC. 1049. TRUST POWERS IMPERATIVE.-Every trust power, unless its execution or nonexecution is made expressly to depend on the will perative. of the grantee, is imperative and imposes a duty on the grantee the performance of which may be compelled in equity for the benefit of

the parties interested.

does

Selection under

SEC. 1050. SELECTION UNDER TRUST POWERS. A trust power not cease to be imperative where the grantee has the right to select trust powers. any and exclude others of the persons designated as the objects of the

trust.

-where no spec

shares, etc.

SEC. 1051. Where a disposition under a power is directed to be made to or among or between several persons, without any specifica- ifications tions of the share or sum to be allotted to each, all the persons designated shall be entitled to an equal proportion. But when the terms of the power import that the estate or fund is to be distributed between the persons so designated, in such manner or proportions as the trustee of the power may think proper, the trustee may allot the whole to any one or more of such persons in exclusion of the others.

benefit of creditors

SEC. 1052. EXECUTION OF TRUST POWERS FOR BENEFIT OF CRED- Execution of ITORS AND ASSIGNEES.--The execution in whole or in part of any trust trust powers for power may be decreed in equity for the benefit of the creditors or and assignees. assignees of any person entitled to compel its execution when the interest of the objects of such trust is assignable.

Manner of exe

SEC. 1053. MANNER OF EXECUTING POWERS.-No power can be executed except by some instrument in writing, which would be suf- cuting powers. ficient in law to pass the estate or interest intended to pass under the power if the person executing the power were the actual owner.

SEC. 1054. Where a power to dispose of lands is confined to a disposition by devise or will, the instrument of execution must be a will duly executed; and where a power is confined to a disposition by grant it can not be executed by will, although the disposition is not intended to take effect until after the death of the party executing the power. SEC. 1055. Every instrument executed by the grantee of a power conveying an estate or creating a charge, which such grantee would have no right to convey or create unless by virtue of his power, shall be deemed a valid execution of the power, although such power be not recited or referred to therein.

CHAPTER TWENTY-FIVE.

EVIDENCE.

SEC. 1056. OATH.-All evidence shall be given under oath according to the forms of the common law, except that where a witness has conscientious scruples against taking an oath, he may, in lieu thereof, solemnly, sincerely, and truly declare and affirm; and wherever herein any application, statement, or declaration is required to be supported or verified by an oath it is to be understood that such affirmation is the equivalent of an oath.

Evidence

Oath.

SEC. 1057. PERJURY.-A person swearing, affirming, or declaring, Perjury. or giving testimony in any form where an oath is authorized by law, is lawfully sworn, and will be guilty of perjury in a case where he would be guilty of said crime if sworn according to the forms of the common law.

bene esse.

SEC. 1058. TESTIMONY DE BENE ESSE.-The testimony of any wit-Testimony ness may be taken in any civil cause depending in any court of the District of Columbia, whether the cause be at issue or not, by deposition de bene esse, under any of the following conditions: First. Where the witness lives at a greater distance than one hundred miles from the place of trial.

de

-when may be

taken.

-before whom.

-interested persons barred.

Notice.

-to whom giv

rem.

Second. Where the witness is likely to go out of the United States or out of the District to a place more than one hundred miles from the place of trial and not return in time for the trial.

Third. Where the witness is infirm or aged, or for any other reason the party desiring his testimony fears he may not be able to secure the same at the time of trial, whether said witness resides within the District or not.

Fourth. If during the trial any witness is unable, by reason of sickness or other cause, to attend the trial, the deposition of such witness may, in the discretion of the court, be taken and read at the trial.

The deposition may be taken before any judge of any court of the United States; before any commissioner or clerk of any court of the United States, or any examiner in chancery of any court of the United States; before any chancellor, justice, or judge or clerk of any court of any State or Territory or other place under the sovereignty of the United States, or any notary public or justice of the peace within any place under the sovereignty of the United States:

Provided, That no such person shall be eligible to take such deposition who is counsel or attorney for any party to the cause or who is in any wise interested in the event of the cause.

Before proceeding to take the deposition reasonable written notice of the time, place, names, and addresses of the witnesses shall be given by the party or his attorney proposing to take the deposition to the attorney of record, if there be one, of the adverse party, and if not, to the party himself, which notice shall be at least twenty days more than the time necessary to reach the place of taking such deposition, and shall specify the name or names of the witnesses, the time and place of taking the same, and the name and official character of the person before whom the same is to be taken; but it shall not be lawful to require the adverse party to attend the taking of a deposition at more than one place on the same day.

In all cases in rem the person having the agency or possession of en in actions in the property at the time of seizure shall be deemed the adverse party until a claim shall have been put in, when the claimant and the person having the agency or possession as aforesaid shall both be entitled to the notice.

-where notice impracticable.

Summons.

tendance.

When by reason of absence of the party or his attorney of record, or other cause, the giving of the notice herein required shall be impossible or impracticable, and there shall be urgent necessity for taking such deposition, the notice shall be given in such manner as a justice of the supreme court of the District of Columbia shall direct.

Summons to any witness to appear and testify shall be issued by the person or officer before whom the deposition is to be taken, and served by the marshal of the United States or his deputy within the place where Compelling at the witness resides; and the witness may be compelled to appear and testify by the officer before whom the deposition is to be taken in the same manner as witnesses may be compelled to appear and testify in court; and for the purpose of executing the provisions of this section any of the persons authorized to take such depositions are hereby vested with all the power and authority for compelling the attendance of the witness and the giving of his testimony which by law or usage are vested in any of the judges of the courts of the United States, and shall be entitled, upon summary application, to the aid of the courts of the United States to compel such attendance and giving of testimony. Every person deposing as herein provided shall first swear or solemnly and truly affirm to tell the truth, the whole truth, and nothing but the truth in answer to such questions as are propounded to him by the parties or their counsel; and the adverse party or his counsel shall have the right to cross-examine such witness.

Oath, etc.

How deposition may be taken, etc.

The questions propounded to the witness and the answers of the witness thereto shall be taken down in writing; and the same may be

taken down stenographically by the officer taking the deposition or a competent and disinterested stenographer engaged by him, and afterwards transcribed into writing or typewriting, and, in the presence of the officer taking the deposition, read over to the witness, and signed by him. If the witness be unable to write or refuse to sign the deposition the officer taking the same shall certify the fact and the reason, if any, assigned by the witness.

The deposition of the witness or witnesses, together with the certificate of the officer taking the same, shall be by said officer sealed up and indorsed with the title of the cause in which the deposition is taken, and the cost of taking the same and by whom paid, and by him transmitted to the court in the District of Columbia in which the cause is pending, and by him deposited, postage prepaid, in the United States mail.

-to be sealed; cost of, etc.

-not to be used

produced.

If, at the time of trial, the witness can be produced to testify in open withere can be court the deposition shall not be read in evidence; but if the attendance of the witness can not be produced then the said deposition shall be admissible in evidence, subject to such objections to the questions and answers as were noted at the time of taking the deposition, or within ten days after the return thereof, and would be valid were the witness personally present in court.

In any case where the interests of justice may require the supreme Granting dedicourt of the District of Columbia may grant a dedimus potestatem to mus, potestatem take depositions according to common usage, and may, according to rei memoriam. and in perpetuam the usages of chancery, direct depositions to be taken in perpetuam rei memoriam if they relate to any matters that might be cognizable in any court of the United States.

tory, etc.

When the testimony of any witness residing in any place not within Foreign deposithe sovereignty of the United States is desired in any cause pending in tions, letters rogaany court of the District of Columbia, the same may be taken upon interrogatories and cross-interrogatories filed in the said court, and transmitted by said court under letters rogatory, addressed to some court of record in the foreign State in which said witness is then to be found.

SEC. 1059. No witness shall be required, under the provisions of the preceding section, to attend at any place out of the county where he resides, nor more than forty miles from the place of his residence, to give his deposition; nor shall any witness be deemed guilty of contempt for disobeying any subpoena directed to him by virtue of the said section, unless his fee for going to, returning from, and one day's attendance at the place of examination are paid or tendered to him at the time of the service of the subpœna.

SEC. 1060. COMMISSION TO TAKE DEPOSITIONS.-On motion made in any common law action in the District, by a party thereto, the court may order a commission to issue to such person or persons as the court may name to take the deposition of any witness residing or being out of the District on interrogatories and cross-interrogatories, to be filed and accompany such commission, as may be provided by the rules of the court, and said commission shall be executed, returned, and published according to the practice in courts of equity:

Provided, That such depositions shall not be admitted at the trial of the action if, at the time, the witness be present in the District and his attendance can be obtained by the process of the court.

Witnesses not to

attend out of country, etc.

-tender of fees.

Commission to take depositions in common law ac

tions.

-not to be used if witness can be produced.

Testimony

SEC. 1061. TESTIMONY IN EQUITY CAUSES.-In equity causes in the District the testimony of the witnesses may be taken in the manner equity causes. provided by the rules of the Supreme Court of the United States for practice in equity, and of the supreme court of the District of Columbia not inconsistent therewith:

in

Provided, The court may, in its discretion, for proper cause shown, when orally order the testimony to be taken orally in its presence or under a com- taken. mission, according to the usages of chancery, or before examiners,