back as June, 1886, he appears to have modified his testamentary intentions upon the request of his sons. Contestants' exhibit is in evidence (No. 17), which is a memorandum in the writing of Robert Bonner, and signed by him as of that date, was written at a time when Mr. Bonner was admittedly in the full possession of his faculties, was not susceptible to undue influence and no attempt had been made, or would have been successful, to overpower his judgment. Reasonable solicitation upon the part of children or other near relatives is not an indication of undue influence; reasonable importunity, the courts have held, may even be permitted to persons closely related to the testator without impairing the will. There is no evidence here of urgent solicitation or importunity. I have not been convinced that there was any great discrimination as between the natural recipients of the testator's bounty. Whatever difference there was is fully accounted for by the habits of the man, his mode of life and his well-known characteristics. He was proud to boastfulness of "Bonner blood" and "Bonner brains." It is in evidence that he wished to keep the Bonner fortune in Bonner hands; that he desired his money should follow the blood. During life he took an absorbing interest in horses. His name had been prominently identified with the improvement of the breed of horses, their care and training. Is it surprising that he was anxious that the stable he had collected, whose possession had cost him a fortune, should be possessed and enjoyed by those of his own name and blood and his name remain associated with it? In his lifetime, and at a period when his mental vigor was unquestioned, when it is not suggested that his will could be dominated by another, he had turned over the New York Ledger to his sons, giving to his daughter no share therein. Did not this manifest his pride of family, his concern that this enterprise should remain identified with the name of its founder? I feel compelled to believe that he was animated by a similar motive in disposing

of his stable. To entertain the notion that Mr. Bonner was unduly influenced in executing the paper propounded, I must assume that at the time of its execution and immediately prior thereto his intellectual faculties had been impaired, and that he had mentally deteriorated. The evidence shows that the witness whose testimony is chiefly relied upon to establish the facts essential to sustaining the contention of the contestants was in frequent communication with the decedent at about this time, and made no objection to transacting important business concerning the disposition of her interest in the Ledger property. It is unlikely that she would have done this unless the testator was then in a fit mental condition to transact business. Her willingness to discuss with Mr. Bonner the negotiation of the agreement in respect to her interest in the Ledger property, and take his advice with reference to the execution of the agreement, was a practical recognition of his mental capacity and the strongest kind of evidence of her belief in his unimpaired mental power. The objections to the probate of the paper propounded have not been sustained by the evidence adduced, and a decree may be submitted admitting the will to probate.

Probate decreed.

Matter of the Judicial Settlement of the Accounts of the Executors of ESTHER WOODS, Deceased.

(Surrogate's Court, New York County, Filed November, 1900.)

1. WILL-DEVISE-UPON CONDITIONS SUBSEQuent—Bequest of Residuary ESTATE UPON A CONDITION PRECEDENT-VESTING-SECURITY TO RE

MAINDERMEN.

Under a devise and bequest to S. H. and E. H. of the use for life of a house and its contents, provided they make it their residence, take care of certain family portraits therein and do not let or underlet the house, with power to them to appoint the remainder to their children if the above conditions are fulfilled, and, upon acceptance of

such devise and bequest, they to have the residuary estate of the testatrix, consisting of personalty, S. H. and E. H. take immediately upon the death of the devisor, life estates in the house and its contents and a right to appoint the remainder, subject in each case to be defeated by their failure to perform the said conditions; but, upon their acceptance of the said devise and bequest as conditioned, they take an absolute estate in the residuary estate, and persons, to whom an identical devise and bequest was made in case S. H. and E. H. should refuse to accept, take no interest therein.

S. H. and E. H., as owners of the personalty, need give no security therefor, not even for the contents of the house.

2. LEGATEE-IDENTITY PROVABLE BY PAROL.

The identity of a legatee may be proved by parol.

3. CORPORATION-GIFT TO PERSONS "WHO, AT THE TIME OF MY DEATH, SHALL BE TRUSTEES OF A CEMETERY.

A gift to " the persons who, at the time of my death, shall be trustees of the Rural Cemetery at White Plains," in trust, to keep a family plot in order, is a gift to the corporation maintaining the cemetery.

4. RESIDUARY LEGATEES-IF THEY DO NOT OBJECT TO A GIFT AS INVALID, OTHERS CANNOT.

Contestants have no standing to attack the validity of such a gift, where persons, found to be the sole residuary legatees, do not object to it, as the gift, if declared invalid, will go to increase the residuary estate.

Proceedings upon the judicial settlement of the accounts of

executors.

George L. Ingraham, for executors; Charles H. Brush and Charles F. Brown, for legatees; Wilson Brown, for White Plains Cemetery; Daniel J. Holden, Franklin C. Hoyt, James E. Kelly and James Barclay, for contestants; Jordan J. Rollins, James W. Gerard, special guardians.

THOMAS, S.-I construe the will of the testatrix, as to the clauses or paragraphs numbered fifteenth, sixteenth, seventeenth and twenty-first, as follows: The testatrix devises and bequeaths to Sarah Hart and Esther Hart an estate or interest in the house No. 38 East Third street, in the city of New

York, with all of its contents, for their use during the term of their natural lives. This devise and bequest is upon condition that they make said property their residence, and upon the further condition that they preserve and take care of the portraits of the deceased husband of the testatrix and of her two deceased sons, which were in said house and which must remain there. The conditions annexed to this devise and bequest are conditions subsequent, and may operate, upon the breach of any of them, to give to the heirs-at-law of the testatrix as to the real estate, and to her next of kin as to her personalty, a right of action which is the modern substitute for what, at common law, was a right to enter for condition broken. The right to the use of the property, upon the terms prescribed, which is, in legal effect, an estate for life subject to be defeated by a breach of one of the conditions subsequent, vested forthwith and at once, at the death of the testatrix, in the devisees and legatees named. The fee of this real property, remaining after the death of Sarah Hart and Esther Hart, did not vest in them, under the fifteenth clause, and the testatrix never intended that it should vest in them, and it is not included in the devise to them. As to this remainder in fee, a power is given to them to appoint the ultimate owner, by last will, to such of their children as they may designate by their last will and testament, provided and upon condition that they accept the property with the conditions imposed, and during their lives occupy the same as a residence, and do not let or underlet the same. The conditions as to continued residence upon the property and refraining from letting or underletting the same, are conditions upon which depend the right to exercise the power of appointing the remainder, and are not conditions precedent to postpone or prevent the vesting of the devise and bequest of the house and furniture, subject t oconditions subsequent as already stated. In case the said Sarah Hart and Esther Hart do not accept the said bequest and devise to them, then the said prop

erty, No. 38 East Third street, with its contents, is given to Martha Ann Hart and Imogene L. Guion, upon the same conditions, and with like power to appoint the remaindermen from such of their children as they may designate by their last will and testament. All of the rest, residue and remainder of the estate of the testatrix she gives and bequeaths unto Sarah Hart and Esther Hart, if they accept the devise and bequest already mentioned, and if they make their residence in the house No. 38 East Third street, in the city of New York, as therein provided and conditioned, and not otherwise. This residuary devise and bequest is subject to the condition precedent that the persons named shall accept the devise and bequest of the rights in the Third street house and its contents, tendered to them, and shall make that place their residence. If they did this, their rights as absolute owners forthwith became vested in the residuary estate, and is not made subject to be defeated by any condition subsequent, and it is not to be abridged by any limitation. A condition subsequent is not to be implied where none is created; neither is a partial intestacy to be created by a forced construction of words. If Sarah Hart and Esther Hart should fail to accept the devise and bequest of the limited estate tendered to them in the Third street house, a similar alternative devise and bequest of the residuary estate is made to Martha Ann Hart and Imogene L. Guion. The rights of Sarah Hart and Esther Hart, if they have accepted the devise to them, exclude all claim of Martha Ann Hart and Imogene L. Guion, who, upon no contingency whatever, can ever take any interest under any of the clauses now under consideration. Their rights depend upon the contingency that Sarah Hart and Esther Hart might not accept, and, if Sarah Hart and Esther Hart have accepted, then they never can acquire anything. No language in the will grants anything to Martha Ann Hart and Imogene L. Guion, or to any other person, if or when the first devisees disappoint the wishes of the testatrix or violate any of