paper "was her will," and to give the paper effect and validity. The testatrix was nervous, but of sound mind. She knew what the instrument was. "If she had not," testifies this witness, "I would not have signed it." She appeared to be under no restraint, and was willing to execute the will. The will was so arranged that the testatrix's name must have been seen when this witness signed it, and the purport of the testimony of the witness is that he does not remember to have seen it. If that was a material fact, his testimony would be wholly insufficient to overcome the facts and circumstances. The execution was made under legal direction. The attestation clause is perfect in form, and the witnesses both signed it. The parties met to have a will executed. The witness Bellows knew that it was a will from her declaration, and asked if she (testatrix) had left him anything by it. The will was therefore fully proven, under In re Cottrell, 95 N. Y. 329; Lane v. Lane, Id. 494; In re Will of Hunt, 110 N. Y. 278, 18 N. E. Rep. 106. Under these cases, a finding against the execution of the will could not be upheld. The positive oath of one witness, with the surrounding facts and circumstances, would prevent, as against the failure of memory of the other witness. There is no proof whatever of "undue influence," in the legal sense of that term. It will not be presumed. It will not be established by irregularity, nor from the fact that the beneficiary stood in a confidential relation to the testatrix. In re Smith, 95 N. Y. 516.

There is proof that the will was voluntary, and perhaps excusing the irregularity in this will. A short time before the will was made, the testatrix lived with one of her daughters, Mrs. Collin. A son, Frederick Bernsee, also lived there. A quarrel arose between mother and daughter on account of the daughter's directing this son to leave the house. The mother said she would go with him, and she did go. There was a dispute over a bed and bedding which her daughter claimed. Mrs. O'Donohue, another daughter, on this same occasion, compelled the mother to open her trunk, and made her take out therefrom some blankets, and compelled the mother to go before a police officer, and then produced a bill of sale from her for a nominal consideration to Mrs. Collin. The testatrix had forgotten the bill of sale, but was greatly incensed at what she supposed to be insulting to her. All friendly relations ceased between mother and daughters, and this will was made as the mother wished to make it. The question as to the admissibility of one of the beneficiaries, Christopher Bernsee, who was present at the execution of the will, is, under the view I take of the case, immaterial. If improperly admitted, no ground of reversal would be furnished. Code, § 2544; In re Will of Eysaman, 113 N. Y. 62, 20 N. E. Rep. 613; In re Smith, 95 N. Y. 516. If the will was proven without his testimony, the judgment would not be. reversed. The judgment and order denying new trial should be affirmed, with costs. All concur.

(71 Hun, 195.)

In re WILLETT.

In re DANIELS.

(Supreme Court, General Term, Second Department. July 28, 1893.) APPOINTMENT OF GUARDIAN-RESIDENCE OF INFANT.

An infant whose deceased parents were residents of Connecticut, and whose entire property was situated there, was removed from that state to New York by an uncle with whom she lived after her mother died and until her father's death. The removal was made on the same day that the probate court of Connecticut had declared void, for want of testamentary capacity, the father's will, in which the uncle was named as guardian. Held, that such infant did not "reside" in New York, within Code Civil Proc. § 2827, so as to authorize the appointment of a guardian by the surrogate's court of New York.

Appeal from surrogate's court, Kings county.

Application by Sophia A. Daniels for the appointment of a temporary guardian of the person of Jennie R. Willett, an infant, under the age of 14 years. Petitioner was appointed guardian, and Martha S. Willett and Edward S. Willett appeal. Reversed.

Argued before BARNARD, P. J., and DYKMAN and PRATT, JJ. Billings & Cardozo, (Michael H. Cardozo and Edgar J. Nathan, of counsel,) for appellants.

Arnoux, Ritch & Woodford, (Wm. H. Arnoux, of counsel,) for respondent.

PRATT, J. This is an appeal from an order of the surrogate of Kings county appointing the petitioner, Sophia A. Daniels, temporary guardian of the person of Jennie R. Willett, an infant, until said infant attains the age of 14 years. The guardian so appointed is the maternal grandmother of the infant, and resides in the city of Brooklyn. George W. Willett, the paternal grandfather of said infant, who resides in the city of New York, also made petition for the appointment of Mrs. Daniels as guardian. Martha S. Willett, the paternal grandmother, and Edward S. Willett, the paternal uncle of said infant, who reside in the city of Bridgeport, Conn., opposed the appointment of a guardian of said infant. Both the father and mother of the infant were residents of Connecticut. The mother died on December 6, 1889. The father died on July 9, 1892. After the death of the mother, the infant lived with her paternal grandmother, in Bridgeport, until May 24, 1892, when, by the father's direction, she went to her maternal uncle, Mr. Sanford, in Bridgeport, and lived in his family until September 22, 1892, when he caused her to be taken to Mrs. Daniels in Brooklyn. On September 22, 1892, the probate court at Bridgeport rejected the probate of the will of the infant's father, made April 14, 1892, on the ground that he was not of sound and disposing mind when he executed it. By that will Mr. Sanford was appointed sole guardian of the person and property of the infant. On September 26, 1892, Mrs. Daniels made her application in this matter. The infant had no property in the county of Kings, or, indeed, in this state. All her

property was in Connecticut. Until sent here by her uncle, she had resided in Connecticut. She was living in the family of her uncle, and the father, by his will, had attempted to appoint him her guardian, but the probate court in Connecticut rejected the will, and the uncle had no power or right thereafter except to deliver her to some person legally authorized to receive her. No person at that time was authorized to receive her. No guardian of her person had been appointed, and it was therefore his duty to retain and care for the child until some court having jurisdiction should make an order with respect to her. Instead of doing that, as soon as the will appointing him guardian was rejected, he at once sent the child outside the jurisdiction of the courts of Connecticut, to her maternal grandmother, in Brooklyn, although equally near relatives were then living in Bridgeport. His object in doing so is apparent. He did not wish the courts of Connecticut to appoint a guardian of the person of this infant, who had always resided, and all of whose property was, in Connecticut. It seems to us that this was merely a change of locality of the infant, made by one who did not, under the circumstances, have the right to do even that; and that such change did not make the infant a resident of Kings county, within the meaning of section 2827 of the Code. The infant's residence was in Connecticut, fixed there by act of her parent, and could not be changed, in contemplation of law, except by a guardian. The order appealed from should be reversed, and the proceedings dismissed, with costs. All concur.

(71 Hun, 199.)

MOORE et al. v. HANOVER FIRE INS. CO. OF CITY OF NEW YORK et al. (Supreme Court, General Term, Second Department. July 28, 1893.) INSURANCE-CONDITIONS OF POLICY-WAIVER.

Where proofs of loss are made by the mortgagee of the insured premises, and the company objects thereto only on the ground that they should have been made by the assured, it thereby waives the conditions of the policy that the consent of the company to the commencement of foreclosure proceedings should be indorsed on the policy, and that proofs of loss should be made within 60 days after the fire.

Appeal from special term, Dutchess county.

Action by Philip H. Moore and Philip J. Ackert, as executors of the will of Barbara C. Rikert, deceased, against the Hanover Fire Insurance Company of the city of New York, and Maggie P. C. Smith, to recover on a policy of fire insurance. The policy was issued by defendant insurance company to defendant Smith to the amount of $2,000; loss, if any, payable to plaintiffs' testatrix, as mortgagee of the insured premises. From a judgment in favor of plaintiffs the insurance company appeals. Affirmed. Argued before DYKMAN and PRATT, JJ.

A. T. Clearwater, for appellant.
Esselstyn & McCarty, for respondents.

PRATT, J. The plaintiffs, Moore et al., auditors of the insured premises, sue on defendant's policy of fire insurance, issued to Smith, covering, among other things, a dwelling house on the mortgaged premises,-$1,500; loss, if any, payable to the mortgagee. The policy contained a condition that (unless otherwise provided by agreement indorsed on the policy) it should be void "if, with the knowledge of the assured, foreclosure proceedings be commenced or notice of sale of any property covered by the policy by virtue of any mortgage or trust deed." If any fire occurred the assured was to give immediate notice to the company, and make proof of loss within 60 days after the fire. The mortgagee commenced foreclosure proceedings August 17, 1891. The papers were served on the insured on that day. An agent of the defendant was informed of the fact, and agreed that the proceedings might be commenced without injuring the policy. It did not appear what the extent of the agent's authority was, but the fact was that no agreement of waiver was indorsed on the policy. Again, the building was destroyed by fire October 23, 1891, and the assured, (Smith,) without just cause, refused to sign the proofs of loss, and thereupon the plaintiff made them out, and sent them to the company on December 26, 1891, which was the sixty-first day after the fire. The case shows no complicity between the assured and the company in her refusal to sign the proofs. There was a deficiency on the foreclosure. I find no difficulty with the failure to furnish proofs of loss within the 60 days. They were sent to and received by the company. It did not reject them because they were not served in time. On the contrary, it did specify the objection that the assured had not made the proofs of loss herself. This would seem to indicate a waiver of the mere matter of time. I think we are justified in holding a similar rule respecting the failure of the agent to indorse the agreement about foreclosure proceedings on the policy. The proof is clear that he said and orally agreed that the policy should stand, notwithstanding the proceedings instituted. Then, when the notice and proofs were served, they were not rejected because the policy had become void. On the contrary, they were retained, and the company contented itself with merely "calling attention" to this clause of the policy, without stating that it would stand on that objection. Instead of standing there, they apparently selected their ground, which was that the assured had not herself made the proofs of loss. I think we are therefore justified in holding that these objections were waived, and that the case stood as though they were without foundation.

In respect to the remaining objection, we shall hold that the proofs of loss were well served by the plaintiffs. This assured refused to make the proofs of loss unless she was paid for it. There was no ground for her refusal. She ought to have signed the proofs, but she, without cause, refused, simply to induce plaintiffs to pay money to her or her lawyer. Without attempting to characterize such conduct further than to say that it was a

fraudulent attempt to obtain money, we hold that, under all the circumstances, the real beneficiaries of this policy made the best proof which they were able to furnish. The fact that the loss was payable to the mortgagee furnishes a strong reason inducing us to hold that, in face of this fraudulent refusal to do her duty, the real beneficiary was justified in making the proof. We therefore, though not without some hesitation, affirm this judgment, with costs.

SCHUYLER v. CURTIS et al.

(Supreme Court, Special Term, New York County. January 21, 1893.) 1. INJUNCTION-ERECTING STATUE OF DECEDENT-RIGHT OF RELATIVES.

A court of equity, at the instance of one of the relatives of a deceased person, will enjoin the making and placing on public exhibition of a statue of the decedent by unauthorized persons, which plaintiff and all other relatives unite in alleging will cause them pain and distress, and will be considered by them a disgrace; and this whether or not, in the opinion of the court, the proposed representation should produce the alleged effect.

2. SAME-CONSTITUTIONAL LAW.

Such unauthorized act of defendants is not within the provisions of the state constitution which secures to each citizen the right to freely speak, write, and publish his sentiments on all subjects.

Action by Philip Schuyler against Ernest Curtis and others to restrain_defendants from making and exhibiting a statue of Mrs. George L. Schuyler, deceased. Judgment for plaintiff.

For reports of decisions on motion to continue pendente lite a preliminary injunction theretofore granted, see 15 N. Y. Supp. 787; 19 N. Y. Supp. 264.

Ludlow, Philips & Winthrop, (James B. Ludlow, of counsel,) for plaintiff.

Logan, Clark & Demond, (Charles M. Demond, of counsel,) for defendants.

INGRAHAM, J. The decision of the general term in affirming the order continuing an injunction which granted the relief asked for by the plaintiff in this action entitles plaintiff to judgment for such relief. I wish, however, to add a few words to state my entire concurrence in the views expressed by the presiding justice in delivering the opinion of the court on that appeal.

All of the surviving relatives of Mrs. Schuyler unite in asking the court to enjoin the defendants from soliciting or receiving subscriptions for a statue or bust of Mrs. Schuyler, and from making such a statue, or causing the same to be made or exhibited. These defendants are an irresponsible voluntary association, and are acting without public authority, and against the express wishes of every relative and connection of Mrs. Schuyler. The defendants have shown no right or authority, therefore, to make and exhibit a statue of Mrs. Schuyler.