WAIVER - Continued.

Mistrial - verdict received in absence of presiding justice — when irregularity

waived.

Terriberry v. Mathot, 235.

Specific performance when prior false representations of plaintiff waived
by defendant.

Urbansky v. Shirmer, 50.

Testamentary trustee-when entitled to commissions.

Matter of Haskin, 754.

WARRANTY.

Deed of.

See DEED.

WATERCOURSE.

1. Duty to keep artificial ditch unobstructed. A railroad company, which has
built a ditch to collect waters coming upon its land from the premises of adjoin-
ing landowners and has built a culvert to conduct said waters under the railroad
embankment, is bound to use reasonable and ordinary care to keep such ditch and
culvert unobstructed, and is liable if accumulated waters set back upon adjacent
lands causing damage. Branson v. New York Central & II. R. R. R. Co., 737.

2. Owner liable for want of reasonable care. It makes no difference that the
water is collected in an artificial channel or that the water came from the lands
of persons other than the plaintiff. A landowner may not collect water into
an artificial channel upon his lands and discharge it upon the lands of another in
such volume or quantity in excess of the natural drainage as to cause injury. Id.
3. Charge. Charge as to liability of defendant approved. Id.
Erroneous finding as to height of crest of dam-height of dam to be taken
from level of average flow of stream, not from the minimum level.

WILL.

Remington Pulp & Paper Co. v. Water Commissioners of City of
Watertown, 907.

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* *

1. Construed devise of life interest with contingent remainders over — when life
tenant cannot compel specific performance by vendee of contract of purchase. When
a will directs the executor to hold specific real estate in trust and invest the
income until an adopted son attains the age of twenty-one years, said property
not to be sold during the lifetime of said adopted son, but to be conveyed to said
son when he arrives at the age of twenty-five years, “to be held by him as fol-
lows: In case of my said adopted son departing this life before me or
* after
my death without leaving lawful issue, then I give all my property, real and
personal, * *
to my nephews *** and my niece* and to their
children," the remainder to the nephews in case of the death of the adopted son
is made part of the trust, and said adopted son, though surviving the age of
twenty-five years, and holding under a conveyance from the executor, is only a
life tenant and the estate is charged with a contingent remainder to his issue, if
any, and if not, then with remainders to said nephews and niece or their children.
Hence, said adopted son cannot specificaily enforce the contract of a third
person to purchase said lands.

*

*

HOUGHTON and MCLAUGHLIN, JJ. (concurring in result only): The will should
be construed to give the plaintiff absolute title, but as there are doubts as to
this, the vendee should not be required to perform specifically. Webel v. Kelly,

521.

2. Residuary cluse construed — when next of kin of deceased residuary legatee not
entitled to share in residuary estate. When a will and codicil, after making specific
bequests, gives, devises and bequeaths the whole residuary estate to the testator's
wife and to specifically named sisters, nephews and nieces, share and share alike,
"and in case of the death of either my beloved wife, my sisters, my nieces or
nephews before the whole of my estate shall be divided, then I direct the said
residuary to be divided among the survivors only share and share alike," the
general gift contained in the first part of said residuary clause is limited by the
restriction contained in the latter portion. Hence, the next of kin of a residuary
legatee who has died before the division of the residuary estate are not entitled
to take, but the whole must be divided among the survivors of the residuary
legatees named. Matter of Wiley, 590.

WILL- Continued.

3. Absolute gift cut down by subsequent limitation. A gift absolute in form may
be cut down by a subsequent limitation disposing of the same property in a
different manner upon the happening of a contingency. Id.

-4. Equitable conversion. As said will in other clauses effected an equitable
conversion of the realty into money, and by the carrying out of specific trusts
postponed the division of the residuary estate, the whole instrument taken
together shows an intention on the part of the testator to leave the residuary
estate to the survivors of the legatees named. Id.

5. Charge when error to charge that jury may find testamentary incapacity.
In an action to set aside a will on the ground of testamentary incapacity and
undue influence, it is error to charge that There is in this case enough to
warrant you in finding that this will was the product of undue influence, or in
finding that he was incompetent to make a will. It is competent for you to
find that, and it is for you to find one way or the other. The court cannot aid

you much in reaching a conclusion, but there is no legal obstacle in the way of
your finding that this will is void because the man was incompetent to make the
will, or because it was the product of undue influence."

-

Such charge is tantamount to a direction to find testamentary incapacity or undue
influence, and usurps the functions of the jury. Niemann v. Cordtmeyer, 326.
6. Discretionary power of disposal by widow. ·when widow may exercise such
power by a devise charged with advancements to other heirs. When a will gives to
the testator's widow a life estate in certain real property with power "to devise
the same by her last will and testament * * * to any or all of our children
or grandchildren or both in such shares or proportions as to her shall seem best,”
and in the event of a failure to exercise such power of disposal by the widow the
will gives said property in remainder "to my children," etc., the widow has
power to devise a portion of said real estate to a granddaughter of the testator
charged with deductions equal to the amounts the testatrix has advanced to the
father and brother of said granddaughter then living. Monjo v. Woodhouse, 80.
7. Devisee estopped. As the testatrix, under her husband's will, had power to
cut off such granddaughter entirely, she cannot complain because the devise is
charged with said deductions.

Nor can she contend that there was a failure by the widow properly to exer-
cise the power of disposal, for in that event the share of the lands would go to
the father of said granddaughter then living. Id.

8. Conveyance by warranty deed for full value shows intention to exercise power.
When the devisee of a life interest, who was also named executrix with full
power to sell real estate, sells lands for full value and gives a warranty deed,
the transaction itself shows an intention to exercise the power to convey the
fee and not the life estate only.

Hence, the rights of a remainderman as against the grantee are cut off. Vines
v. Clarke, 12.

9. Power coupled with interest. When the donee of a power to sell has also an
interest in the subject of the power and makes a conveyance without reference to
the power, it is a question of intention as to whether the conveyance was in
pursuance of the power or only a grant of the interest. Id.

10. Husband not necessary party to wife's deed. It is not necessary for the husband
of a donce of such power coupled with an interest to join in the wife's conveyance.
Id.

Trust-beneficiary entitled to "dividends, issues and profits" of stock in
manufacturing corporation- what portion of increase in assets of corporation
included under said terms.

Matter of Stevens, 773.

Partition - when direction for sale of premises proper although there are
contingent interests.