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20. EQUITABLE Es'rOPPEL—ENCEOACHMENT BY PLAINTIFF. In an action to enjoin defendant from obstructing an alley-way the plaintiif will not be estopped from claiming an easement for a right of way throu h such alley by the fact that he has himself encroached upon the alley-way. d.

See MUNICIPAL CORPORATIONS, 8-20; TURNPIKES.

WIDOW. See Exncu'rons AND ADMINIsTRATORs, 23—26.

WILLS.

Revocation.

1. AFTER-BORN CHILD LEGITIMATED—PHYSICAL BIRTH.

A child born out of lawful wedlock, but who is subsequently legitimated by the marriage of its parents, and whose father made his will two days before his marriage, which legitimated the child, is not an after-born child, within the meaning Of the fifteenth section Of the Pennsylvania act of April 8, 1833. making a will void as to after-born children. The act contemplates a physical birth, and not a mere legislative legitimation after the making of the will. Appeal of Me Oulloch, (Pa.) 253* '

2. REvOCA'rION OF LEGACY.

Where, by a will, 40 per cent. of the residuary estate is given to the son of the testator, and it is provided that, if that percentage shall amount to $400,000, the son is to take $50,000 absolutely, and the executors are to invest the residue Of the son’s share for his benefit during life, and, on his death, to pay the principal to his family, and, by a codicil, $200,000 is to be first deducted from the son’s share before the $50,000 is given him, and the balance, if any, is to be invested as provided by the will. a subsequent codicil, directing that the balance of the 40 per cent. left after deducting the $200,000 shall be invested for the support of the son’s family and education of his children, etc., does not revoke the legacy of $50,000 to the son; the gift not being referred to at all in the subsequent codicil, or canceled by implication. Hurlbutv. Hutton, (N. J.) 286.

Probate— Contests.

8. MAKING UP ISSUES—PRECEPT or OnPrIANs’ COURT—PENNsYLVANIA ACT OF MARCH 15, 1832.

Under section 41 of the Pennsylvania act of March 15, 1832, (P. L. 146,) it is the duty of the orphans’ court to direct its precept for an issue to the court of common pleas for the trial of a dispute upon a matter of fact arising befom it; and, in determining whether or not to issue the precept, the sole question is whether, upon the testimony presented by the respective parties, a seriout dispute has arisen as to the matter Of fact,—such a dispute as should be sub mitted to and passed upon by a jury. Appeal of Knauss, (Pa.) 394.

4. TESTAMENTARY CAPACITY.

The true test to determine, in the case Of alleged want of testamentary capacity, whether or not an issue should be granted, is, if the testimony is such that after a fair and impartial trial, resulting in a verdict against the proponents of the alleged will, the trial judge, after a careful review of all the testimony, would feel constrained to set aside the verdict as contrar to the manifest weight of the evidence, it cannot be said that a dispute, wit in the meaning of the act, has arisen. If, on the other hand, the state of the evidence is such that the judge would not feel constrained to set aside the verdict, the dispute should be considered substantial, and an issue to determine it should be directed.

6. EVIDENCE—REMARKS OF CONTEs'I‘AN'r.

In a will contest a remark made by one of the beneficiaries, who was also a witness in the case, soon after the date of the will, that he and Aunt Fann had got the will fixed as they wanted it, and other similar remarks, are a missible in evidence, both as admissions by a party in interest, and also to contradict his testimony that he used no undue influence, and cannot, therefore, be excluded on the ground that other beneficiaries under the will should not be affected by his admissions. Sannders’ Appeal, (Conn.) 193*

6. UNDUE INFLUENCE—CIRCUMSTANTIAL EVIDENCE.

Undue influence may be found from all the facts and circumstances sur

rounding a case, even if there is no direct and positive evidence. 1d.

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'7. SETTING ASIDE FOR UNDUE INFLUENCE—FORM OF FINDINGs.

If, upon a will contest, the questions of due execution and testamentary capacity are answered in the affirmative, and there is no claim of fraud or mistake, a finding by the court that “there is no sufficient proof to show” that certain clauses “were made a part of said will by the direction or with the knowledge of the testatrix, and so the court finds that the words above recited are not a part of the will, ” etc., will not justify setting aside those clauses on the ground of undue influence. The undue influence should be found directly. PARK, C. J ., and BEARDsLEY, J ., dissenting. Rockwell’s Appeal, (Conn.) 198.*

Construction—Interests—Estates, etc.

8. INTEsTACY—PREsUMPTION As To INADvERTENT OMISSION 0F LEGATEE.

Testator, in the introductory part Of his will, clearly expressed his intention to dispose of the whole of his estate. In a subsequent clause he bequeathed to A., his granddaughter, the sum of $300, and in another clause gave to his five daughters, naming them, equal shares of his personal, real, or mixed estate. Held, that there was no reason, from an inspection of the whole will, to infer that the testator inadvertently omitted from the last clause the name of A. Miller’s Appeal, (Pa.) 715.

9. DEVIsE BY IMPLICATION—“I AM ABOUT To CONVEY,” ETC.

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To create a devise by inference, there must be such a strong probability of an intention to devise that an intent to the contrary cannot be supposed; and a clause in a codicil, executed three years before the testator’s death, to the effect that he is “about to convey” certain real estate to his son’s wife, the grant not to be charged against either the son or his wife as an advancement or otherwise, ” is a mere expression of an intent to grant her the property by an appropriate conveyance inter visas, and cannot be construed as a devise. Hurlbut v. Hutton, (N. J.) 286.

IDENTIFICATION OF DEVISEE.

If the description of the person, whether natural or civil, in a devise, be made with sufficient certainty so that the person intended may be distinguished from every other person, trifling omissions or misprisions will not make the devise invalid; for the use of names or descriptions is but to make a distinction between person and person, and therefore it is suflicient if the person be so called or described that he or it maybe distinguished from every other. American Dramatic Fund Ass’n v. Lelt, (N. J.) 280.

LIFE-EsTATE—“DURING THE YEARs ABOVE LIMITED.”

Where a testator leaves one-half the income of his property to his wife for life, and one-half to his son till he is 30 years of age, the wife and son to have, “during the years above limited,” the use and occupation of his residence, and in another clause permits his son to have one-half the property set off to him when he is 30 years of age, and to include in his half said residence, “subject to the privilege of the wife hereinabove described, ” held, that the phrase ‘during the years above limited” gave the wife the right to the use and occupation of the house for life, and not merely till the son reached the age of 30 years. Mulford v. Mulford, (N. J.) 609.

RULE IN SHELLEY’s CASE—LIFE-ESTATE—FEE.

A devise to A. for her life, and at her death to her heirs, creates a fee in A. under the rule in Shelley’s Case. A power of sale and right to use the proceeds, given to A. in case of the destruction of the buildings, is not enough to show the testator’s intent togive a mere life-estate to her in the absence of such destruction. Vowine/cel v. Patterson, (Pa.) 470.

DEFEASIBLE INTEREsT IN PROPERTY.

A testator gave a life-estate to his widow, and then provided that “at her death, and after his son A. shall have attained to his majority, the property shall be divided between his [the testator’s] three children, E., T., and A., share and share alike.” By the sixth section of the will he provided that “ the children of any child dying before the period of distribution are substituted for the parent.” The widow died in 1883; T., in 1859, leaving a widow and children. In 1856, T.’s share in the real estate was sold at sheriff’s sale under judgments and executions against T. Held, that the gift to the parents is made defeasible by the sixth section. and that the share in question, which was sold at sheriff’s sale, belongs to T.’s children. Lafoy v. Campbell, (N. J.) 300.‘

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LEGACY—VESTED INTEREST—DEATH OF LEGATEE DURING LIFE-ESTATE— ADMINISTRATION. _

If a legacy be bequeathed to a person to hold in trust, to pay the interest half yearly to A. during her natural life, and, from and immediately after A.’s death, to pay the principal sum to her child or children, the interest of the child or children is a vested interest, and, upon their death intestate, survives to their administrators whether they die before the time for the payment of the legacy or not. Rubencane v. McKee, (Del.) 639*

LEGACY—VESTED 0R CONTINGENT INTEREsTs.

Testator gave the residue of his estate to his wife, for the term_ of her natural life; and, upon her decease, ordered and directed the remainder of his estate to be sold by his executor, and that the moneys arising therefrom, and so remaining, should be divided between his children (naming them) share and share alike, and if any of said last-named childrenbe deceased, leaving issue, then the share the parent would have been entitled to if livmg to go to such issue. Held, that the interest of the children was a vested one during the life-time of the widow. Richardson’s Appeal, (Pa.) 204.*

PAYMENT PCSTPoNED—OCNVENIENCE OF ESTATE. ' 0

A bequest in the form of direction to pay and divide at a future period vests immediately if the payment be postponed for the convenience of the estate. or to let in some other interest. Rubencane v. McKee, (Del.) 639.

EXECUTED TRUST—LEGAL AND EQUITABLE TITLE IN LEGATEE. _

Testator bequeathed “all stocks and bonds to A., the dividends derived from the same to be paid to her by B., whom I name as trustee for said Stocks and bonds, as said dividends may accrue from time to time;” and in a subsequent clause bequeathed to B. $5,000 for services as trustee for A. Held, that the bequest vested in A. the equitable and legal title in the stocks and bonds bequeathed, and that the trust, if it could be regarded as such, was executed in the donee at the time of its creation. Appeal of Arnold, (Pa.) 751.

LEGACY IN PAYMENT OF DEBT.

A direction in a will that certain sums advanced by the testator to his son in-law on the security of an estate in France be deducted from that daugh ter’s share, and. upon payment of them in that manner, the securities should be assigned to her, does not entitle her to the securities until, upon a proper accountiililg, it appears that her share is sumcient to pay the debt. Hurlbut v. Hutton, ( . J.) 286.

Income.

REPAIRS OF PROPERTY OCCUPIED BY LEGATEES To BE PAID OUT OF INCOME.

Where a testator leaves property to trustees to give to his wife and his son each one-half the income of his estate, and to them both the joint occupancy of his residence, the trustees must pay the taxes and costs of repair of that property out of the income; no intention appearing to charge the corpus of the estate with the same. Mulford v. Mulford, (N. J.) 609.

Annuity.

. DEED OF TRUST.

A., by deed of trust, transferred, on June 24, 1853, a part of his estate to trustees, to pay him the income for life, and at his death to pay certain annuities, and the trust estate to continue until the death of the last annuitant. A. died May 26, 1858. By his will he devised an annuity to his wife, a legacy to a third person, and then $10,000 to a charity; further directing that the balance of his estate, after securing the annuity to his wife, should be applied to the payments of the legacies in order of priority mentioned, and finally be

ueathed the residue of his estate, including “any balance * * resulting

rom the closing of ” the above trust deed, to his executors, in trust, to carry out the purposes of his will, and divide the remainder among his children. The last annuitant under the above trust deed, died in 1884. Upon a distribution of the balance of testator’s estate, held, that interest on the above legacy of $10,000 should be paid from one year after the testator’s death until the time of payment. Appeal of Koon, (Pa.) 377.

Advancements.

RELEASE BY QUITCLAIM DEED—EVIDENCE. _A son and his wife executed to his father a quitclaim deed for all their right, title, and interest to a certain farm in Iowa, and M10 all “right, title, 22.

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claim, and interest in and to all property now owned or hereafter to be acquired by the said Thomas M. Drake,” the father. The son also made admissions to havingreceived'his share of his father’s estate. Held, that the son’s claim for his share, after the death of the father, cannot be mamtamed. Fisher .v. Bolton, (N. J.) 500.

Ademption.

LEGACY—CHARGED 0N LAND—EsTOPPEL.

Testator, in a will made in 1866, devised to his son A. a farm of 84 acres, charged with a legacy of $800 to testator’s daughter B. He also devised to his son C. a farm of 55 acres absolutely. Some six years after making thlr will, he conveyed to C. the farm devised to A., and to A. the farm devised tc C. He also sold his personal property, receiving notes to the amount of $500 which he placed in the hands of D., in trust for his daughter B. After the death of testator, E., the guardian of the children of 3, who had also died, brought ejectment against D., who defended under the devise in the will, and a deed from the devisee. Being defeated in the ejectment, E. petitioned the orphans’ court for payment of the legacy of $800. Held, that there was an ademption of the legacy, which discharged the land; and, further, that D. was not estopped from setting up this fact because he had successfully made use of the will to defend his possession in the action of ejectment. Appeal of Spier, (Pa.) 692.

Oharges. LEGACIES.

When legacies are given generally, and the residue of the real and personal estate is afterwards given in one mass, the legacies are a charge upon the real ggowaeell as personal estate.‘ American Dramatic Fund Ass’n v. Lett, (N. J.)

BEQUEST CHARCEABLE WITH MONEYs LOANED.

Testator ordered that after his decease his interest in the business carried on by T. should be appraised. and that T. should have the use of it so lon - as the testator’s estate should remain undivided between his children, on .’s paying to the testator’s wife during her life, and, after her decease, to his executors, the lawful interest on the appraised value of such interest. The interest of the testator in such business was appraised at $411.99. T. paid interest upon it to May 9, 1856. Since that time neither interest nor principal has been paid. Held, that T.’s share is in equity chargeable with the payment of the $411.99, but that no interest should be paid on it, as, the interest being the widow’s, it was her loss should it not be collected. Lafoy v. Campbell, (N. J.) 300.

Lapsed Legacies. DEATH OF LEGATEE.

Where an aggregate fund is given to several persons nominatim, to be divided among them in equal shares. if one of them die, before the testator, the share of such decedent will lapse. O'ollins v. Bergen, (N. J.) 284.

Legacies, when Due—Actions for.

TIME OF PAYMENT—PENNSYLVANIA ACT OF FEBRUARY 24, 1834—INTEREsT.

The provisions of the Pennsylvania act of February 24, 1834, § 51, (P. L. 83; Purd. Dig. 555, pl. 231,) that a legacy shall be payable one year after the death of the testator, determines the time from which interest shall begin to run on the legacy, unless there be language or circumstances apparent upon the face of the will showing that the testator could not have intended the legacy to be payable at the end of the year. Appeal of Koons, (Pa.) 377.

INCOME 0F REsIDUARY EsTATE.

Legatees of the income of the residuary estate are entitled to it from the death of the testator. Mulford v. Mulford, (N. J.) 609.

ACTION—AT LAw OR IN EQUITY—R. L. VT. § 2239.

Under R. L. Vt. § 2239, a legatee may, contrary to the English rule, maintain an action at law against an executor to recover a legacy, and is not confined to his remedy in equity. Weeks v. Sowles, (Vt.) 603. PLEADING—MATTER REs ADJUDICATA BY DECREE 0F PROBATE COURT.

In an action of debt against an executor upon a decree of the probate court, the question whether the debts and funeral expenses of the testator have been paid is settled by the decree sued on, and therefore res adjudicata, and payment need not be alleged in the declaration. Id.

30. DECLARATION—~PossEssION 0F LEGACY. _ _ In such an action it need not be averred that the defendant is In possession of the legacy claimed by the plaintiff; the defendant’s liability not being dependent upon such possession. Id.

See CHARITIEs AND CHARITABLE UsEs; COSTS, 1; POWERS; TRUsTs, 1; WASTE..

WITNESS. Competency. l. TENANT IN COMMON NOT COMPETENT IN SUPPORT OF Co-TENANT AGAINsT Oo'r sTANDING TITLE.

One of several tenants in common, in whom an outstanding title is alleged to exist, is not a competent Witness for a co-tenant asserting the title. Swank v. Phillips, (Pa.) 450.

2. ACTION BY EXECUTOR—NOMINAL PARTY—REV. ST. ME. CH. 82, § 98, CL. 3.

When an action is brou ht for the benefit of a testate estate in the name of an executor, the plainti cannot be deemed a nominal party, within the third clause of Rev. St. Me. 0. 82, § 98, so as to allow the adverse party to testify,—whether the amount recovered would finally go to pay the debts of the estate, or to the plaintiff as legatee under the will,—if the estate has not been finally settled in probate court. Buck V. Rich, (Me.) 871.

3. CONVERSATIONS—PARTIES—THIRD PERsON—DEATH 0F.

Where the parties to an action had, prior to its commencement, conversations at which a third person, Who had before stood in the same position as defendant, although never actually the defendant, was present, it is competent for either plaintiff or defendant to testify to these conversations, not. withstanding the fact that the third person has died in the mean time. Jackson v. Payne, (Pa.) 340.

Corroboration—Impeachment— Contradiction. 4. ACCOMPLICE—CORROBORATION.

In a trial under an indictment, the evidence of an accomplice may be corroborated, as to any material fact, even though that fact does not necessarily connect the prisoner with the offense. State v. Maney, (Conn.) 401.

5. CONTRADICTING—COLLATERAL MATTERs.

A Witness in a suit for divorce, on cross-examination, was asked if he had not at one time committed larceny. Having denied it, held, that he could not be contradicted in regard thereto. Pullen v. Pullen, (N. J.) 887.

6. IMPEACHMENT—CHARGE OF CRIME. "

A witness cannot be impeached by showing that he has been charged with and arrested for a crime.

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