WILL- Continued.

tion provided. And I declare that the provision in this section made for
my beloved wife is intended to be in lieu and bar of all dower and thirds,
and all other claims on her part against my estate."

Held, that the provision in favor of the widow was not capable of a con-
struction which would make it a demonstrative legacy of $25,000 a year;

That the testator's intention was that the widow should receive in the
aggregate $25,000 multiplied by the number of years which she might live,
So far as the rents and profits of the trust estate should produce that sum;
and that, hence, in case the net income of the rents and profits did not amount
to $25,000 in any one year, such deficiency should be made good out of the
surplus, if any, of succeeding years;

That the trustees had no power, however, to retain the surplus in any
year as security against a possible deficiency in succeeding years, as such
a course would amount to an accumulation of the rents and profits of real
property in violation of the statute upon that subject;

That the provision contained in the will directing the trustees to divide
the surplus income among the persons presumptively entitled to the corpus
of the trust estate, did not evince an intent on the part of the testator to
make such persons the special objects of his bounty, as the statute, in the
absence of any disposition thereof by the will, would have disposed of the
surplus in the same manner that it was directed to be disposed of by the will,
and as such provision was doubtless inserted to avoid the appearance of
intestacy;

That where the trustees for a period of nine successive years had paid
over the entire annual income of the trust estate to the beneficiaries, and
during that period had rendered accounts to the latter in which the trustees
made no claim for commissions, their right to such commissions was waived,
as the income was the sole fund from which the commissions were payable,
and they could not, by paying over to the beneficiaries the amount of the
commissions in one year, create a charge or lien therefor on the income of
the beneficiaries in future years.

Semble, that an unintentional error, resulting in an overpayment to the
beneficiaries in one year, might be corrected in the next;

That the trustees were not entitled to commissions upon moneys expended
in improving the real estate held in trust upon the ground that, the remain-
dermen being entitled to the corpus of the trust estate at the expiration of
the trust term, the trustees would not receive commissions on such invest-
ment; as, under the will, the trustees were empowered to sell the realty, and
should they do so they would receive full commissions on the sum realized
on the sale, which would include the amount of any improvements made
thereon from the personalty.

Quare, whether, at the expiration of the trust term, the trustees might not
have a lien on the real estate for their commissions on the moneys expended
in improving such real estate. SPENCER v. SPENCER...

....

3. Bequest of specific legacies with remainder to executors in trust at
expiration of what time the estate will be presumed to have been settled by the
executors.] Where the will, dated in 1868, of a testatrix, who died in 1882,
after directing the payment of the testatrix's debts, and the payment of two
legacies to grandchildren, in case they should attain majority, gives the bal-
ance of her estate in trust for certain purposes, to her executors, only one of
whom survived her death in 1882, it will be presumed that at the time of
such surviving executor's death in 1887, he had performed all the duties
devolving upon him as executor, and that whatever property he then had
in his possession was held by him only as trustee for the purposes of the
trust created by the will, and passed to two substituted trustees, including
bonds which the original executor and trustee had procured to be registered
in his name as executor.

Semble, that such bonds, although containing a provision that, after such
registry had been noted thereon, no transfers of them should "be valid unless
made on the said books by the registered holder in person, or by his attor-
ney duly authorized, and noted on the bond," may be transferred by the
substituted trustees. COOPER v. ILLINOIS CENTRAL R. R. Co..

4. Liability of a company for the discharge from registry of bonds heli
in trust, upon the application of only one of two trustees.] The discharge of

PAGE.

403

22

WILL- Continued.

such bonds from registry, so as to make them payable to bearer, is not a min-
isterial act and can be properly effected only upon the joint application of
both of the two substituted trustees, and if the company issuing the bonds
discharges them from registry, upon the application of one of the substi-
tuted trustees, made without the knowledge or consent of the other, and the
trustee procuring such discharge sells them and converts the proceeds to
his own use, the company is liable to the other substituted trustee for their
value.

Semble, that when bonds stand upon the books of a corporation, registered
in the name of a trustee, it is the duty of the corporation, before permitting
a transfer, to inquire concerning the trust and the trustee's authority. If
it fails in this duty, and injury comes to the beneficiary through a wrongful
transfer by the trustee, to which the corporation is a party, the corporation
is liable. Id.

5. When brokers selling the bonds are not negligent.] The fact that the
bonds when first presented to the brokers, through whom the delinquent
trustee finally sold them, were registered in the name of the original execu-
tor, does not charge the brokers with negligence, as, in the absence of evi-
dence that they had knowledge of the condition of the trust estate, or of the
death of the original executor, they were entitled to assume that the change
in registration had been properly made. Id.

6. A devise to an executor to collect and pay over the rents until a sale,
creates a trust -a limit on the price, which may be changed by the beneficiaries,
does not violate the statute against perpetuities - a failure to sell within two
years.] A testatrix by her will devised certain real estate to her executor
in trust and directed him, as soon as possible after her death and within two
years after the probate of the will, to sell the real estate "at public or private
sale and for the best price that can be realized, but for not less than eigh-
teen thousand five hundred dollars, without the written consent" of the
testatrix's five sons or the survivors of them, and, upon the sale of the real
estate, to divide the proceeds equally among said sons, and in the event of
the death of any of them prior to such sale, to hold his share in trust dur-
ing the minority of his issue, should he leave any, and, if he left none, to
pay it over to the other sons in equal proportions. Until the sale of the real
estate, the executor was directed to collect the rents thereof, and at the end
of each year to divide the net income among the testatrix's sons, and in the
event of the death of any of said sons before such division, to make the same
disposition of the income as was directed to be made of the proceeds of the
sale.

Held, that the heirs of the testatrix were not entitled to maintain an action
for the partition of such real estate, as the will created an express trust in
such real estate and not merely a power in trust;

That the fact that the trust was to continue until the sale, and that the exec-
utor could not sell for less than the stipulated price without the written con-
sent of the testatrix's sons, did not render the trust void as in violation of the
statute against perpetuities, since the executor could sell for any price if he
obtained the consent of such sons;

That the power to sell had not ceased by the executor's failure to exercise
it within two years. SPITZER v. SPITZER..

7.

Inheritance tax· — a legacy absolute in terms, impressed by extrinsic
proof with a trust.] An executor who, under the will, takes a third of the
residuary estate absolutely, unincumbered by any trust imposed by the will
itself, is not relieved from paying the inheritance tax imposed by the Collat-
eral Inheritance Tax Law (Laws of 1887, chap. 713) by the fact that, in an
action brought to obtain a judicial construction of the will, it is held as a
result of extrinsic evidence that he took the legacy impressed with a trust in
favor of the testatrix's brother. MATTER OF EDSON...

-

8. A remittitur from the Court of Appeals examined — the judgment of
the Supreme Court entered thereon is not conclusive.] The State, not being a
party to the action brought to obtain a construction of the will, is not con-
cluded as to its right to collect the tax upon such legacy by a judgment of
91

APP. DIV.--VOL. XXXVIII.

PAGE.

436

19

WILL- Continued.

the Supreme Court, entered upon the remittitur of the Court of Appeals,
but may, for the purpose of determining what was decided in the Court of
Appeals, examine the remittitur and the opinion of the Court of Appeals
where such opinion is made by the remittitur a part of the judgment of the
Court of Appeals. Id.

Marketable title - that a will was erroneously construed in an action to
which all persons interested were parties, is not a ground of objection to the title.
See BROWN v. MOUNT....
WITNESS - Personal transactions with a decedent when a predecessor in
title may testify to them.] 1. Upon the trial of an action involving the
respective priorities of three mortgages, the holders of which derived their
title from one Nafis, who had died prior to the commencement of the action,
the person who assigned two of the mortgages to Nafis may testify to per-
sonal transactions had with Nafis concerning such mortgages, where it appears
that the title of such witness is not in dispute and had ceased by the assign-
ment to Nafis. SQUIRE v. GREENE....

2.

An assignee of a mortgage may not testify that her deceased assignor,
owning three mortgages, stated that hers was a prior lien.] The holder of
one of the mortgages is not competent to testify in her own behalf that Nafis
represented to her, at the time she purchased the mortgage from him, that
it was a first mortgage; such testimony is not admissible upon the theory
that the transaction did not relate to the other mortgages, as the declaration
that the witness' mortgage was a first lien was in effect a representation
that the other mortgages were subordinate thereto. Id.

3. A party liable for a deficiency is incompetent.] A party to such
action, who executed the bond and mortgage held by other parties thereto,
and who was liable for any deficiency arising on the foreclosure of that
bond and mortgage, is not competent to testify on behalf of the holders of his
mortgage as to personal transactions with Nafis. Id.

4.

A witness may not be discredited merely by showing that he has been
indicted.] Where the defense of usury, interposed in an action upon a prom-
issory note, depends almost entirely upon the testimony of one of the defend-
ants, the fact that he was required, upon his cross-examination, to state that
he was the person described in an indictment exhibited to him by the plain-
tiff's counsel, and that it was found upon the complaint of his former
employer, requires the reversal of a judgment entered upon a verdict in
favor of the plaintiff.

The fact that the indictment was not read in evidence, and that the wit-
ness subsequently remarked that he did not state that he had ever been
indicted, is immaterial. HIRSCHMAN v. COHN....

5.

PAGE.

Personal transactions with a decedent—they cannot be proved inferen
tially by facts stated by a party incompetent, under section 829 of the Code of
Civil Procedure, to testify directly in regard to such transactions.] In an action
brought to recover a balance claimed to be due for services rendered by the
plaintiff to the defendants' testator, for which it was alleged the testator had
promised to pay at the rate of $3,000 a year "from month to month," the
defendants by their answer admitted that some work" had been done.

On the trial of the action the plaintiff was allowed to testify as to the
nature of the testator's business and the duties which he (the plaintiff) per-
formed, and to state, the books I kept were those that are required in an
office, and also his transactions."

Held, that the admission of the answer did not relieve the plaintiff from
the obligation of proving his employment by the deceased;

That although he attempted by his testimony to prove the independent
facts of services rendered, yet, as from these independent facts the inference
of employment to render such services might be drawn, such testimony was
inadmissible under section 829 of the Code of Civil Procedure.

MOSES v. HATCH.

Taxation, in each of four actions of mileage for the same witnesses ·
papers which may be used on a motion for a retaxation of costs.
See LYMAN . YOUNG MEN'S COSMOPOLITAN CLUB..

...

440

431

351

140

220

WITNESS- Continued.

-

Partnership accounting — admissibility of a schedule prepared by an
expert accountant from the books.

See VAN NAME v. VAN NAME.
Change of venue for the convenience of witnesses - personal inconvenience
to the plaintiff will not defeat it.
See HEDGES . BEMIS.

PAGE.

451

349

Examination of a witness before trial-the order therefor must be a
judge's order.
See WIECHERS v. NEW HOME SEWING MACHINE CO.......
Testimony by an interested party as to personal transactions with a

1

decedent.

YONKERS- Removal of an action from a Justice's Court to a City Court.
it is a change of forum, not of venue, and is not prohibited by section 18 of article
3 of the Constitution.

See DORAN v. BUSSARD......

6865 043

30