PAGE.

Failure to move for judgment is a waiver of objection to the sub-

mission of the case to the jury.

See GROGAN v. BROOKLYN HEIGHTS R. R. Co.......

Of notice of motion

appearance without notice.

See MATTER OF WOOD.....

WARD:

See GUARDIAN AND WARD.

254

514

WARRANTY — On sales of personal property.

See SALE.

WATER-Commerce by.

See SHIPPING.

-

WATER COMPANY - Equity - action to compel a water company, which
had agreed to construct a road, to remove its pipes therefrom- - a grantee with
knowledge of an agreement, made by his grantors and partially executed, is
lound thereby - a party asking equity must do it-laches as a defense to
equitable relief — right of a water company to lay its pipes in a street.

See JAYNE v. CORTLAND WATER WORKS CO.....

WATERCOURSE — Rights in water conducted in a raceway from a dam
construction of a deed controlled by its use — a judgment in equity speaks as of
the time of the trial.] The owner of a tract of land abutting on the Hudson
river, to which land there was appurtenant the right to take water from a
raceway or flume leading from a dam built across the river, divided the tract
of land into lots and conveyed such lots to various parties by mesne con-
veyances. The title to a portion of the lots became vested in the Union Bag
and Paper Company, and the title to certain others (the remainder of the
lots) became vested in Allen Brothers Company.

In the deeds of two of the lots acquired by Allen Brothers Company there
was conveyed the right to take water from the flume by orifices equaling in
one case an area of 270 and in the other an area of 350 square inches.

In the deed of one of the lots subsequently acquired by the Union Bag
and Paper Company there was conveyed "one-eighth part of one-half of the
waters of said river naturally flowing in the channel thereof and over and
across the land so to be divided."

In the deeds of other lots acquired by the Union Bag and Paper Company
there was conveyed the right to take water from the flume by spouts
equaling in area, respectively, 350 square inches, 300 square inches, 500
square inches and 25 square inches.

The flume did not extend beyond the lots acquired by the Union Bag and
Paper Company and Allen Brothers Company, and the common grantors,
when conveying the last of the lots, did not reserve any interest in the
waters passing through the flume.

In an action brought by the Union Bag and Paper Company against Allen
Brothers Company to enjoin the latter from using more than 270 and 350
square inches of water respectively, the court found that although the
amount of water in the flume was several times greater than was represented
by the flow from orifices aggregating the number of square inches specifi-
cally conveyed, it was the intention of the common grantors to sell all of
the water flowing through the flume.

On this basis, taking into consideration the one-eighth part of one-half of
the waters of the flume, the 1,795 square inches specifically conveyed would
represent fifteen-sixteenths of the whole, which would make the total grants
of water 1,915 square inches or parts.

The trial court further found that for more than twenty years prior to the
commencement of the action Allen Brothers Company had openly, under a
claim of right and without objection, taken more than 620 square inches
of water, to wit, 620/1915ths of said water, and had expended large sums
of money in reliance upon its right to do so.

Held, that a judgment entitling Allen Brothers Company to continue
to use 620/1915ths of the water should be affirmed:

That such judgment might be sustained not only upon the theory that such
was the correct construction of the conveyances above considered, but upon

517

WATERCOURSE — Continued.

PAGE.

the theory that Allen Brothers Company had acquired by prescription the
right to use the 620/1915ths of the waters of the flume;

That a motion to modify the judgment rendered in the action so as to make
it speak as of the time of the commencement thereof, instead of as of the
time of the rendition of the decree, was properly denied, as it is the
practice in equity to give relief adapted to the situation existing at the time
of the decree. UNION B. & P. Co. v. ALLEN BROTHERS Co.....

-

....

WHARF The fee of the land between high and low-water lines in
Oyster bay is vested in the town of Oyster Bay an upland owner cannot
construct a dock thereon- quare, where the title is in him or the State.
COUDERT v. UNDERHILL...

See OYSTER BAY.

WIDOW-Right of, to dower.

WILL

See DOWER.

When the provisions of a trust in favor of a life beneficiary are
independent and do not depend upon the validity of other provisions thereof —
when the rights of parties in_remainder should not be determined on the admis-
sion of a will to probate.] 1. The 9th and 10th clauses of the will of a testatrix
provided as follows:

Ninth. I give devise and bequeath all the rest, residue and remainder
of my estate, real and personal of what nature or kind soever, and where-
soever situated to my executors who shall qualify as such under the Thirteenth
clause of this my will as trustees upon the following trusts:

To lease and manage the real estate, to invest and reinvest the personal
estate, to collect and receive the rents, interest and income of such real and
personal estate, and to pay over to my sister Susan the entire net amount
of such rents, interest and income during the term of her natural life.
Immediately after the death of my said sister, my said executors or the sur-
vivor of them, as such trustees, shall divide the said residuary estate (real and
personal) into as many shares of equal value as will make one for each of
the children then living of my nephew, Richard H. Mount and one for the
lawful issue collectively of each of the children of my said nephew (if any)
who may then have died leaving such issue, and shall set apart one of such
shares to each child then living, and one to such issue collectively of each
deceased child, which shares shall be designated as the property of such
parties respectively and my executors shall keep separate accounts of
such respective shares.

"

My said executors as such trustees shall pay over to the children of
my said nephew if then of the age of twenty-five years, otherwise on their
arriving at that age, the net income of the shares so set apart to them respec-
tively during the period of their respective lives and after their deaths
respectively they shall distribute and pay over such shares to the issue of such
children respectively in equal portions per stirpes.

My said executors and trustees shall pay over to and distribute among
the issue of any deceased child or children of my said nephew who shall
at the death of my said sister Susan be of the age of twenty-five years, other-
wise as soon as they respectively attain that age, their respective portions of
the share so set apart to such issue collectively.

Tenth. I order and direct that my executors or the survivors of them,
as such trustees, upon completing the division of my real and personal estate
as herein before directed, execute and deliver to each child or other person
entitled to the use of any portion thereof a sufficient deed or declaration
in writing specifying particularly the several parcels of real estate and also
the personal property embraced in his or her share of my estate. They shall
also on paying over and distributing the said shares to the persons respec-
tively entitled thereto, execute all such deeds, conveyances and transfers of
the real and personal estate as may be necessary fully to carry into effect
such distributions."

The testatrix was survived by her sister, Susan Mount, by her nephew,
Richard Mount, and by two adult sons of the latter.

Held, that the trust created for the benefit of the testatrix's sister was valid,
and, being independent of every other provision of the will and of any gen-

APP. DIV.-VOL. CVII. 46

529

335

WILL- Continued.

PAGE.

eral plan or scheme of testamentary disposition, should be sustained indepen-
dent of the validity of the other trusts;

That if other children of Richard Mount should be born after the death
of the testator and during the life of Susan Mount, the trusts attempted to
be created for such after-born children would be void;

That the decree admitting the will to probate should simply adjudge the
validity of the trust, created in personal property, during the life of Susan
Mount, and should not attempt to determine the validity of the provisions
contained in the will as to the disposition to be made after the death of
Susan Mount of the personal property embraced within that trust, but that
that question should be left for determination until her death.

2.

MATTER OF MOUNT....

A legacy to a voluntary unincorporated religious association is void·
when it cannot take as a trustee under chapter 701 of the Laws of 1893.] James
R. Park, by his will, bequeathed $5,000 to "the Progressive Spiritual Society
of Waverly, N. Y., to be used by the said society in such manner as it may
deem most expedient for the development and advancement of spiritualism
at Freeville, Tompkins County, N. Y."

The testator, by the use of the words, "the Progressive Spiritual Society
of Waverly, N. Y.," intended to designate the Progressive Spiritualists'
Association of Waverly, Tioga county, N. Y. The latter body is a volun-
tary unincorporated religious association consisting of seven or more persons
which is a part of the National Spiritualists' Association of the United States,
a corporation organized under the laws of the District of Columbia.

There is also in existence an organization known as the Central New
York Spiritual Association, which organization was, at the time of the execu
tion of the will, an unincorporated society, but which, since the making of
the will, has been organized as a corporation under the laws of New York.
Such corporation holds meetings at Freeville regularly every year and the
testator had frequently attended such meetings and was a stockholder
thereof.

In an action brought by the Progressive Spiritualists' Association of
Waverly, Tioga county, N. Y., through its president, against the executors
of the will, to recover the legacy referred to, it was

Held, that a judgment in favor of the plaintiff in such action should be
reversed;

That the bequest could not be sustained as an absolute one, because the
beneficiary, being an unincorporated voluntary association, was incapable of
taking such a bequest;

That the bequest did not create a trust, and could not, therefore, be
sustained under chapter 701 of the Laws of 1893, which provides that a trust
for a charitable use shall not fail because of the uncertainty of the benefici-
aries or because of the failure to designate a trustee;

That chapter 701 of the Laws of 1893 did not change the rule of law
which declares an unincorporated religious or charitable society incapable of
taking a bequest to it, either absolutely or as trustee.

Semble (per SMITH and CHASE, JJ.), that, under chapter 701 of the Laws of
1893, the legacy created a trust for the purpose of sustaining the spiritualistic
meetings held at Freeville under the auspices of the Central New York
Spiritual Association, and that, while the Progressive Spiritualists' Associa-
tion of Waverly, Tioga county, N. Y., was not authorized to act as trustee,
the trust, although indefinite, should, nevertheless, be executed under the
supervision of the court, by a trustee to be appointed.

FRALICK. LYFORD..

3. Giving to the attorney drawing it the larger part of the estate what
evidence is not sufficient to establish an intelligent knowledge of its contents by
the testator, who was unable to read or write.] A man, seventy-five years of
age, partially deaf and unable to read or write, but concededly of sound and
disposing mind and memory, made a will whereby he gave to his grandson
$3,600 of his estate, to a half-brother $500, and to a stranger in blood his
residuary estate, which amounted to $7,500 The testator lived with his
grandson, who was his only descendant, during the last two years of his
life, and was at all times on friendly terms with him and had made declara-
tions of his intention that the grandson should have the bulk of his prop-

1

543

WILL- Continued.

PAGE.

erty. The residuary legatee was the testator's legal adviser, the draftsman
of the will and the person who procured the witnesses to its execution. It
was produced for probate by him, and so far as appeared he was the only
person who had ever read it or had had possession of it. The residuary lega-
tee conceded that it was incumbent upon him to show affirmatively that the
testator had an intelligent knowledge of the contents of the will, and offered
the evidence of two witnesses to establish that the testator had made declara-
tions to the effect that he intended to provide for the residuary legatee in his
will, and that he had made a will in which he left most of his money to
strangers.

Held, that the above, being the only evidence tending to establish such an
intelligent knowledge, the Appellate Division would not reverse a decree
of the surrogate refusing to admit the will to probate. MATTER OF BEDELL. 284
4. ·Gift of a remainder subject to a life estate - when it vests absolutely
only at the termination of the life estate · marketable title.] A testatrix by
her will gave certain real estate to her daughter "for her natural life and
on her death, I devise the same to her children and issue should she leave
any, but should (she) not leave any her surviving, I devise the same to the
Methodist Episcopal Church in 125th Street, Harlem, of which I am now
a member, subject, however, to the power now hereby given to my execu-
tors to sell three lots thereof during the lifetime of my daughter should they
deem it necessary for her support and the proceeds thereof shall be applied
to the support and maintenance of my said daughter and at her death, what-
ever may be left, if any, shall be given to an divided among her children
share and share alike, the children of a deceased child to take the share of the
parent."

In a case submitted to determine whether a marketable title could be given
of the real estate passing under the will, it appeared that the daughter was
over seventy-four years of age and had two children, both of whom were
married but neither of whom had issue. By the death or removal of the
executors the power of sale, given to them by the will, had been rendered
ineffectual.

Held, that the estate in remainder did not vest absolutely under the pro-
visions of the will until the death of the life tenant, and that consequently
her children, during her life, could not convey the remainder in fee.

HEBBERD V. LESE....

5.
When an estate in remainder is vested so as to pass to the heirs of the
remainderman dying pending the continuance of the life estate.] The 9th
clause of the will of a testator, who had devised a life estate in his farm to
his wife Elizabeth, provided as follows: "Ninth. Upon the death of my
said wife, Elizabeth, I give and bequeath unto my said daughter, Lydia, all
that part of my farm and premises lying westerly of the New York and
Harlem railroad at Unionville during her natural life, and at her death I
order and direct my executors to sell the same, namely: All that part of
my said farm situate at Unionville, lying westerly of the New York and
Harlem railroad, as described in the above ninth clause of my will, to be
divided as follows, namely, one-third part thereof to my grandson, George
W. Yerks, and the other two thirds part thereof to my two grandsons, John
C. and Joseph O., share and share alike."

The testator was survived by all the persons mentioned in said 9th clause.
One of the grandsons, however, died during the life of the testator's widow.
Held, that the 9th clause of the will operated to create a vested remainder
in favor of the deceased grandson in one-third of the premises described in
said 9th clause, and that such remainder was not divested by the death of the
grandson during the pendency of the widow's life estate.

MATTER OF YERKS.

6. One legacy "to be expended by him (the legatee) as I have instructed
him" and another, to the same legatee, "for his personal use" - the former is
invalid as a trust and cannot be sustained as an individual bequest.] The 10th
and 17th clauses of the will of a testator provided as follows:

"Tenth. I give and bequeath to my friend Rev James S. Duffy, the sum
of Five thousand ($5,000.00) dollars, to be expended by him, as I have
instructed him during my lifetime.

*

*

*

425

240

WILL- Continued.

PAGE.

Seventeenth. I give and bequeath to my friend Rev. James S. Duffy, for
his personal use the sum of One thousand ($1,000.00) dollars."
Held, that the 10th clause of the will was invalid;

That it could not be sustained as a trust;

That it could not be sustained as an individual bequest to the person
named therein, because the 17th clause of the will, in which the testator
gave the same person $1,000 "for his personal use" negatived the idea that
the testator intended that the previous bequest of $5,000 should, under any
circumstances, be applied to the personal use of the same individual.

7.

MATTER OF KEENAN

.....

Appeal from a surrogate's decision refusing to admit a will to probate
when the questions of fact will be sent to a jury for decision.] If. upon an
appeal to the Appellate Division from a decree of the Surrogate's Court grant-
ing or denying probate to an instrument propounded as the last will and
testament of a decedent, it appears that the disposition of the questions of
fact raised by the evidence is not free from doubt, and the surrogate's deci-
sion is not entirely satisfactory, the questions of fact will be sent to a jury
for determination pursuant to the provisions of section 2588 of the Code of
Civil Procedure.

In the present case, where a surrogate denied probate to a will on the
ground that the testator's signature thereto was a forgery, a majority of the
court determined that under the foregoing rule the surrogate's decree should
be reversed and that the questions of fact arising in the proceeding should be
submitted to a jury. MATTER OF BURTIS...

..... ..... ...

234

... 51

8. When a legacy passes to the descendants of a legatee dying before the
testator.] The death of a legatee prior to the death of the testator causes the
legacy to lapse with the single statutory exception, in certain cases, of a
legacy to a descendant of the testator. ROBERTS v. BOSWORTH....

9.

-

....

A lapse will not be prevented by the testator's knowledge of the legatee's
death and his intent that it go to his descendants.] If the legatee is not a
descendant, the fact that at the time of the execution of the will the testator
was aware of the death of the legatee and intended that the legacy should go
to her descendants, will not prevent the lapsing of the legacy. Id.
WITNESS- Examination of, before trial.

See DEPOSITION.

511

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