Digest. 2. By section 7 of chapter 260 of the and as the county of Ulster had become the owner, there was nothing to prevent the wife of the tenant from becoming the purchaser. (Senior agt. Marcinkowiski, ante, 381.) stream, and the title to the bed of the river is in the people of the state, and the decedent's title to land described as extending to the "Mohawk river" extends only to its bank. (Jones agt. Jones, ante, 510.) to sell and convey the premises 2. The Mohawk river is a navigable as such section directs." Where the county treasurer of Ulster county did "acquire and hold the premises described in the complaint, under and in pursuance of the act aforesaid, and after the expiration of two years conveyed the same to the wife of the tenant occupying the premises: Held, that a tenant is authorized as against his landlord to acquire an outstanding title. The title of the owner was extinguished by the sale. His right to redeem was cut off by the notice given pursuant to section 12 of the act, and as the county of Ulster had become the owner, there was nothing to prevent the wife of the tenant from becoming the purchaser. (Senior agt. Marcinkowiski, ante, 331.) TITLE. * 1. By section 7 of chapter 260 of the Held, that a tenant is authorized as against his landlord to acquire an outstanding title. The title of the owner was extinguished by the sale. His right to redeem was cut off by the notice given pursuant to section 12 of the act, 3. Claus Bulwinkel, the owner of four lots on Fifth avenue, New York city disappeared, having made a mortgage thereon which, on the 22d day of August, 1862. was foreclosed and the summons published against him. The lots were sold under a judgment for their sale in this action. Six years thereafter the purchasers, through proceedings, in foreclosure of said mortgage by an advertisement under the statute, sold two of the lots, and they bringing more than sufficient to pay the mortgage, the other two lots now in question were not sold, but a quit-claim deed thereof was given to the heirs of said Bulwinkel. (Seligman agt. Sonneborn, ante, 465.) 4. One of these heirs thereupon Digest. 5. The defendant refused to take title, because Claus Bulwinkel had not been made a party to the action, or appeared therein; that there was no proof that he was dead, or died intestate, or that the parties in said partition suit were seized of the lots, and that the court acquired no jurisdiction over Claus Bulwinkel, and that the sale to plaintiff was void. (Id.) 6. Evidence of the omitted facts in the partition suit was given on the trial of this action, among other things, that Claus Bulwinkel left New York city in the year 1860. In November, 1862, his relatives read an account of the massacre of emigrants in the southwest August 9, 1862, and among the killed a gentleman from New York city describing said Bulwinkel, the relatives testifying that they had not heard from him and that it was the common report that he had been killed by the Indians and was dead: Held, that by the statute he was presumed to be dead on the 9th day of August, 1869, seven years from the date of his reported death. (Id.) 7. That the evidence was sufficient to prove the particular date of death to be August 9, 1862, seven years before, and that he did not live during seven years (Citing and commenting on the cases and what facts are sufficient proof of death at a particular time). (Id.) 8. That the foreclosure action was commenced at a time when he was dead and had been buried thirteen days; that the judgment entered was void; that no title passed under it, the same being in the heirs. (Id.) 9. That the partition suit was begun seven years after Claus Bulwinkel would be presumed to be dead by the statute, independent of the evidence of the direct proof of his death. (Id.) 10. That the defect of evidence might have been supplied in that suit by opening the proceedings, but that the heirs being all of full age, and having, on the 5th day of January, 1872, conveyed by deed to the plaintiff all their right, title and interest in the lots, he had a good title, independent of the partition sale, and the defendant was bound to take it. (Id.) See WILL. White agt. Kane, ante, 382. TRUSTEES. 1. The surrogate has authority, in appointing successors to testamentary trustees, to require them to give security for the faithful discharge of their duties. (In the Estate of John Whitehead, deceased, ante, 90.) See CORPORATIONS. Halstead agt. Dodge, ante, 170. UNDERTAKING. 1. In an action against the sureties on an undertaking on arrest, where the nature of the cause of action and the right to the order of arrest are identical, commenced upon the vacating of the order of arrest, but before the termination of the action in which the order of arrest was granted: Held, that the sureties were not liable on the undertaking until judgment was rendered in the action for defendant. Also, held, that the undertaking carefully distinguishes between the cases where the right to arrest is identical with, and those where the right to arrest is extrinsic the cause of action; that in the one case the right to the order is determined by the fact that the plaintiff recovered judgment; in the other, the right to the order of arrest is determined upon motion, Digest. and if the vacated order is unreversed, it is a "final decision that the plaintiff was not entitled to the order of arrest (Schuyler agt. Englert, 14 Weekly Dig., 571, follorced). (Staab agt. Shupe, ante, 4.) 2. An undertaking on appeal to the court of appeals must be executed by at least two sureties; the appellant cannot himself be one of the sureties, nor can the approval by a judge of a guaranty company under chapter 486, Laws of 1881, take the place of the two sureties. This reverses the judgment of the general term, rendered in Hurl agt. Hannibal and St. Joseph R. R. Co. (67 How., 516). (Nichols agt. McLean, ante, 370.) 8. An undertaking executed only by the appellant and the Fidelity and Casualty Company, with no other surety, is insufficient. (Id.) See SURETIES. Hooker agt. Townsend, ante, 107. UNITED STATES COURT. See PRACTICE. Matter of Fiske, ante, 432. VERIFICATION. 1. Answer the verification thereof may be omitted in an action charg ing the defendant with keeping a bawdy-house. (Anderson agt. Doty, 33 Hun, 238.) WILL. 1. A subscription without a seal is a valid execution of a will relating to real and personal estate. (Matter of the Petition of Phillips agt. Phillips, ante, 291.) 2. The testator's acknowledgment, in the presence of the attesting | witness, that the instrument presented for attestation was his last will and testament, connected with the fact that his signature had the been made was then seen by each attesting witness, each knowing his handwriting, was a sufficient acknowledgment of the genuineness of the signature and a perfect identification thereof. (Id.) 3. It is unnecessary that the acknowledgment be made in the presence of both of the attesting witnesses at the same time, but it is sufficient to make it to them severally. It is also unnecessary for the attesting witnesses to sign in the presence of each other. (Id.) 4. Where a testator declared to his subscribing witnesses severally that the instrument by him previously subscribed was his last will and testament; it was a sufficient acknowledgment. The subscribing witnesses having each seen the testator's subscription at the end of the will before the instrument was declared, and knowing his handwriting, it was a perfect identification of the written words. (Id.) 5. The attestation clause, usually signed by the attesting witnesses, is no part of the will, and it is legally executed without the addition of such a clause if the witnesses attest in the manner and form prescribed by the statute. (Id.) 6. Where the acknowledgment by the testator of his signature and the attesting by the subscribing witness were simultaneous acts, it satisfies the reason of the statute, and is a sufficient compliance therewith. (Id.) 7. A testator directed that a certain legacy should be paid "as soon as practicable," after his death. By a later article of his will he made a trust provision in favor of Digest. 8. A devise was as follows: "After all my lawful debts are paid and discharged, I give, devise and bequeath all my estate, real, personal or mixed, to my wife L. E. W.:" Held, that though the real estate stands charged with the debts of the testator, yet as the charge is general, the devisee, after the expiration of the statutory lien of three years, can give a good title to purchasers unincumbered by such debts. (White agt. Kane, ante, 382) 9. The widow was made sole executrix, but there was no mention of dower in the will. Held, that the assertion of her right to dower in the account filed by her before the surrogate cannot be construed into an election to take her dower in the place of the devise. (Id.) 10. By the provisions of section 1866 of the Code of Civil Procedure a devisee in a will is vested with the right to bring his action to determine the true effect and meaning of a devise to him of real estate; and he has a right to require, by action brought for that purpose, the judgment of the supreme court, as to the intent and meaning of a testator in making a testamentary disposition of real estate, so far as the same involves the interests of the devisees. (Jones agt. Jones, ante, 510.) 11. To make the declaration required by the statute as to wills no form of words are essential, but what is required is that the witnesses shall be given to understand by words or acts by the decedent that the proposed instrument is intended as a will; the legislature only meant there should be some communication to the witnesses indicating that the testatrix intended to give effect to the paper as her will. Any communication of this idea, or to this effect, will meet the object of the statute. (Matter of the Application for Probate of Will of Eliza B. Beckett, deceased, ante, 391.) WITNESS. 1. A cross-examining counsel should not be allowed to go into matters not involved in the suit and which are wholly immaterial in the case for the purpose of impeaching a party or witness. In order to impeach a witness out of his own mouth the questions must be confined to material matters in the case about which the witness has testified. (Cropsy agt. Perry, ante, 40.) 2. In the trial of a proceeding for the probate of a decedent's will, one who is named as legatee in the disputed paper is incompetent, under section 829 of the Code of Civil Procedure (save in the cases therein excepted), to testify in his own interest concerning a personal transaction or communication between himself and the decedent. (In the Estate of Ann Voorhis, deceased, ante, 261.) Digest. transaction with a deceased per- 5. A judgment creditor does not Procedure. (See Gillies agt. Krue- 6. When an administrator is de- 7. When the declaration of a third 8. The answer of a witness to a |