Injunction against appropriation of waters of | Nonexpert witnesses cannot give opinions as a running stream before paying damages is properly refused where the damage is nominal and the appropriator is able to pay as soon as the amount is ascertained, and when granting writ would work great hardship.-New Haven Water Co. v. Borough of Wallingford (Conn.) 235. Where a municipal corporation appropriates the waters of a running stream, then abandons part of it, but afterwards reappropriates it, merely buying property, during the abandonment, along said stream, including a mill with "the water privileges thereto," does not constitute an adverse appropriation. -New Haven Water Co. v. Borough of Wallingford (Conn.) 235. In action between upper and lower riparian proprietors, held, that the lower proprietors had no right to control the gates at the foot of a pond emptying into the stream in question by prescription of contract.--Weare v. Chase (Me.) 900. §4. Conveyances and contracts. Right to maintain tide mill is appurtenant to water way. Hence a purchaser of mill site who does not acquire water way has no right to use water.-Urch v. City of Portsmouth (N. H.) 112. Where, by an agreement, each party was to tap a main water pipe with a 4-inch service pipe, the right of each is limited to the insertion in the main pipe of a 4-inch service pipe, and each is entitled to the same quantity of water. -Van Horn v. Clark (N. J. Ch.) 643. Where two persons each paid one-half of the expense of laying and repairing an aqueduct, to be their joint property, each was entitled to onehalf of the water conveyed by the main pipe.Van Horn v. Clark (N. J. Ch.) 643. Where the right of each party to an agreement is limited to the insertion of a 4-inch pipe in the main water pipe, and one party makes other taps, or permits a third party to tap, without the consent of the other, he will be enjoined from using such taps.-Van Horn v. Clark (N. J. Ch.) 643. §5. Public water supply. Though control of public water supply, and sole right to turn it on and cut it off, is in borough council, it has no right, in absence of regulation, to cut it off, by reason of consumer's failure to comply with ordinances respecting plumbing.-Johnson v. Borough of Belmar (N. J. Ch.) 166. General act relating to boroughs (P. L. 1897, p. 285) transfers to borough council control over waterworks previously existing. Walling Borough of Deckertown (N. J. Sup.) 864. WELLS. v. to the testator's mental condition, unless they have had sufficient knowledge and personal observation to form correct conclusion, or unless they have testified to sufficient facts upon which to base opinion.-Appeal of Turner (Conn.) 310. One may make will if he understands the nature of transaction, although mentally incapable of attending to business generally.-Appeal of Turner (Conn.) 310. Qualified witness may state if, in his opinion, testator's understanding was sufficient to transact ordinary business.-Appeal of Turner (Conn.) 310. A legacy payable on the termination of a life estate in the property out of which the fund for the legacy is to be created becomes vested immediately on the death of the testator.-In re Journey's Estate (Del. Ch.) 795. Insane delusion in regard to object of testator's benefaction invalidates will when it enters into it, though testator is capable of attending to business. In re Segur's Will (Vt.) 342. § 2. Requisites and validity. Mere kindness of treatment or moderate and reasonable solicitation will not amount to undue influence, when yielded to from sense of duty and without restraint.-Appeal of Turner (Conn.) 310. To constitute undue influence, free agency and independence must be overcome, and domination or control over the mind must have constrained, contrary to the actor's will, what he was unable to refuse or too weak to resist. -Appeal of Turner (Conn.) 310. Clause in will that legacy to legatee predeceasing testatrix shall not lapse, but go to heirs at law of such legatee, held not revoked by codicil, directing that legacy to such deceased legatee shall go to his issue. Bringhurst v. Orth (Del. Ch.) 783. Will is revoked by subsequent will only so far as latter expressly revokes, or is shown to be inconsistent with, the former.-Lane v. Hill (Ν. Η.) 393. Destruction of a will does not revive a former one, in the absence of evidence that such was testator's intention, especially where it contains a clause of revocation. - Lane v. Hill (N. H.) 393. Mistake in description of legatee held not to defeat bequest.--Van Nostrand v. Board of Domestic Missions of Reformed Church in America (N. J. Ch.) 472. Birth of a posthumous child entitled, under 3 Gen. St. p. 3760, § 19, to take the same share as though his father had died intestate, does not affect a devise in trust to the executor, with Oil or gas wells, see "Mines and Minerals," § 2. power of sale. -Van Wickle v. Van Wickle (N. Ch.) 877. Under devise of land for the use of devisee during her life, and providing that, if she leaves no heirs, it shall be sold, and proceeds divided among others, she will take fee simple.-Reimer v. Reimer (Pa.) 316. §3. Probate, establishment, and annulment-Probate or establishment of lost or destroyed wills. Declarations of deceased testator are admissible to show contents of lost will, and, if such will be inconsistent with earlier will, to show revocation of prior will.-Lane v. Hill (N. H.) 393. ten by certain person is admissible in corroboration of testimony of another to that effect.Lane v. Hill (N. H.) 393. Declarations of a testator are admissible on the question whether he was contented or discontented at a particular time or under particular circumstances.-In re Barney's Will (Vt.) 75. Counterfeit signatures of the witnesses to a will are not admissible in evidence on a contest of the will, nor is their use admissible in the cross-examination of such witnesses. In re Barney's Will (Vt.) 75. Where the contestants of a will claimed the will to have been an unnatural one, and introduced evidence of the impoverished condition of some of the testator's heirs who were excluded by the will from any share in his estate, and of the friendly relations between the testator and some of them, evidence of the unfriendly feeling of the testator towards the husband of one of such heirs and the son of another is admissible in behalf of the proponent. In re Barney's Will (Vt.) 75. Hearing or trial. In a will contest based on undue influence, where confidential relation between executor and testator is not admitted, and question is submitted to jury with charge that, if it existed, burden of proof is on executor to show that he acted fairly, there is no error in refusing instruction assuming such relationship to exist. -Appeal of Turner (Conn.) 310. When court properly defines testamentary capacity, and charges that burden of proving it is on proponents, against whom verdict should be if there is doubt as to where preponderance of evidence lies, instruction that verdict must be for contestant if evidence shows that testator lacked testamentary capacity may be refused.-Appeal of Turner (Conn.) 310. Where court submits question of weakened mind to jury, and refers to evidence showing it and evidence against it, and intimates its own opinion, error is committed.--Appeal of Turner (Conn.) 310. Though issue whether will was revoked would have been withdrawn on motion before its submission, there being no sufficient evidence that it was revoked, motion made after submission and failure of jury to find a verdict thereon is too late. Lane v. Hill (N. H.) 393. Under Pub. St. c. 200, § 11, providing that on appeal from probate court, if any fact material to cause be disputed, court ma may direct issue to try such fact, whole question should not be submitted to jury, but only material questions of fact bearing thereon.-Lane v. Hill (N. H.) 393. Reason of appeal, assigned on appeal from probate of will, held to be denial that instrument was in fact will, and sufficient.-Lane v. Hill (Ν. Η.) 597. Issue of revocation of will, tendered by reason of appeal, presents question of fact for jury.-Lane v. Hill (N. H.) 597. Where legal reason is assigned for appeal from decree of probate court approving and allowing will, further reasons for correctness of reason assigned need not be alleged.-Lane v. Hill (N. H.) 597. Where whole question of validity of will is brought to supreme court by the reason of appeal, disputed questions of fact may be determined by jury.-Lane v. Hill (N. H.) 597. § 7. Construction-General rules. Devise in trust for beneficiary, payable when, in trustee's opinion, he should be capable of handling fund, creates an absolute estate in beneficiary, which he may dispose of by will. -Chase v. Benedict (Conn.) 507; Appeal of Griggs, Id. Evidence of understanding between testator and beneficiaries held inadmissible to explain alleged latent ambiguity in description of property.-Shapleigh v. Shapleigh (N. H.) 107. A devise of land in New Jersey under a will of a nonresident must be determined by the laws of New Jersey.--Van Wickle v. Van Wickle (N. J. Ch.) 877. § 8. Designation of devisees and legatees. "Heir," in will, construed to mean "legatee," or "devisee."-Shapleigh v. Shapleigh (N. H.) 107. Will construed, and held, that "other legacies mentioned," which were preferred in the codicil, did not include one postponed in the will.Eames v. Trustees of Protestant Episcopal Church in the Diocese of New Hampshire (N. H.) 382. In construction of will, where there was ambiguity as to legatee whose children were to take, held, in view of evidence, that name must control in determining legatee, and not professional title.-Atterbury v. Strafford (N. J. Ch.) 160. Board of Domestic Missions of Reformed Church in America held legatee under bequest to "Domestic Missionary Society."-Van Nostrand v. Board of Domestic Missions of Reformed Church in America (N. J. Ch.) 472. A posthumous child of a testator held entitled, under 3 Gen. St. p. 3760, § 19, to the same share as though his father had died intestate.-Van Wickle v. Van Wickle (N. J. Ch.) 877. Devise for use of testator's son for life, then to be divided among devisee's sons, held a devise in fee. Stigers v. Dinsmore (Pa.) 550. $ 9. - Survivorship, representation, and substitution. Bequest payable in eight years, but over if legatee died childless, held to contemplate death of legatee within eight years. -Andrews v. Sargent's Estate (Vt.) 341. § 10. Nature of estates and interests created. Where no time was fixed in a will for the division of the estate into shares, as provided therein, held, the estate, for the purposes of the will, must be treated as separated into shares from the death of the testator.-Frost v. МсCaulley (Del. Ch.) 779. Under a provision in a will directing sale of land and distribution of proceeds, the title to the land descends to the heirs at law, and remains in them until the sale is made. In re Journey's Estate (Del. Ch.) 795. Under a bequest to testator's wife of all the residue of his property, she to hold and dispose of it while she remained single, and, at her death or marriage, the property to be equally divided between his two daughters, the widow took only a life estate in the realty.-Russell v. Werntz (Md.) 219. Life estate, with full right of enjoyment and power of disposition during life, held created, with valid limitation over of undisposed property. --Shapleigh v. Shapleigh (N. H.) 107. Will held not to convey to testator's nephew fee-simple estate, and hence nephew's will purporting to dispose of property was inoperative. Miller v. Lamprey (N. H.) 528. Bequest to school districts held to be divided among the districts as organized at death of testator, according to number of children in each.-Westgate v. Town of Haverhill (N. H.) 697. In an action to construe a will, held, that testator's granddaughter was entitled to take, under a codicil, that portion of the estate which testator had acquired from his daughter subsequent to execution of the will. - Stratton v. Stratton (N. H.) 699. The giving of a power of sale to two executors is not a provision in the will that the survivor should not exercise the power on the death of one of them, within the statute precluding a conveyance by a surviving executor where there is such a provision.-Rutherford Land & Improvement Co. v. Sanntrock (N. J. Ch.) 938. A will construed, and beneficiaries held to share the income equally for life, and, on the death of either, it was to go to the survivor until death, when the principal of each was to be distributed as directed by his will.-In re Kelly's Estate (Pa.) 289; Appeal of Fidelity, Insurance, Trust & Safe-Deposit Co., Id. Wills construed, and right of estate of wife on her death in remainder under husband's will determined. In re Pinkerton's Estate (Pa.) 424; Appeal of Warren, Id. Will construed and held not to show an unqualified gift of personalty to testator's wife.-In re Geist's Estate (Pa.) 437; Appeal of Kaylor, Id. On petition for construction of will, held wife took life estate only, with power of disposition, and that limitations over were valid.-In re Tilton (R. I.) 223. Will construed, and held, that the estate of certain beneficiaries therein named vested immediately on the death of the testator, and that gifts over were of no effect.-Reybold v. Reybold (Del. Ch.) 794. Will construed, and held that a bequest to certain children was to them as a class, and vested in the survivor, and hence, on his death unmar ried, passed to his father, under Pub. St. c. 196, §§ 1, 2.-Brewster v. Mack (N. H.) 811. A will which bequeathed all of testator's estate to his children, share and share alike, subject to a life estate in testator's widow, held to vest the title in the children, and the share of a child dying during life of widow goes to her executors on death of widow.-Miller v. Worrall (N. J. Ch.) 890. Will construed, and held, that a certain excess of income of certain trust estates should be held by the trustee as a part of the corpus of the estate, and not as income.-Equitable Guarantee & Trust Co. v. Rogers (Del. Ch.) 789. Where an annuity for the widow, to be derived from property set apart for that purpose, is provided for by will, the trustees have only authority to set apart a sufficient amount to raise such annuity; and hence any excess becomes a part of the residuary estate. Equitable Guarantee & Trust Co. v. Rogers (Del. Ch.) 789. A devisee's right to enter and use the land exclusively held perfect against all the world, except parties hired by devisor to cut and saw timber thereon; and, on their nonperformance, the title to the timber vested in her.-Lambden v. West (Del. Ch.) 797. Ignorance of a legacy held not to avoid the bar of limitations as against a purchaser of land under the will who did not know that the legacy was not paid.-Congregational Church of White River Village v. Benedict (N. J. Ch.) 878. Evidence of ignorance of a legacy held insufficient to preclude the presumption of payment arising from the lapse of time. Congregational Church of White River Village v. Benedict (N. J. Ch.) 878. That an executor ordered the doing of certain things held not to show a deficiency of assets to pay a legacy, where the expense of executing the order was not shown. Congregational Church of White River Village v. Benedict (N. J. Ch.) 878. A presumption of a payment of a legacy arises after the expiration of 20 years from the time of the accrual of a right to it.-Congregational Church of White River Village v. Benedict (N. J. Ch.) 878. A testamentary disposition of a child's share of a testator's estate is not in contravention of a provision that if the child sell, assign, or pledge his share, it shall work a forfeiture thereof.Miller v. Worrall (N. J. Ch.) 890. A devise to a child does not vest title in him, where a subsequent clause of the will gives the land to the executor, with power to sell, if deem ed for the estate's benefit.---Rutherford Land & Improvement Co. v. Sanntrock (N. J. Ch.) 938. A devise in trust to two executors survives to one of them on the death of the other.-Ruther ford Land & Improvement Co. v. Sanntrock (N. J. Ch.) 938. $17. Pecuniary legacies held to bear interest, though will gives executors three years in which to settle estate.-Warwick v. Ely (N. J. Ch.) 666. Legacies charged on property, estate, or interest. A testator's personal representatives are nec Parol testimony is admissible to explain intent of testator as to beneficiary.-Van Nostrand v. Board of Domestic Missions of Reformed essary parties to a suit to subject land to the Church in America (N. J. Ch.) 472. County court cannot construe will, on appeal from decree of probate court admitting it to probate.-In re Segur's Will (Vt.) 342. $15. Rights and liabilities of devisees and legatees-Nature of title and rights in general. Will construed, and held, that the excess of income on stock of the estate set apart to pay the widow's annuity, being accumulation of the residuary estate, was a part of the corpus of the trust fund, and not income.-Equitable Guarantee & Trust Co. v. Rogers (Del. Ch.) 789. payment of a legacy.-Congregational Church of White River Village v. Benedict (N. J. Ch.) 878. Death of executor held no excuse for failing to make personal representative a party to a suit to enforce payment of a legacy from land.-Congregational Church of White River Village v. Benedict (N. J. Ch.) 878. A will bestowing land on a residuary legatee subject to a prior legacy does not enable the prior legatee to enforce payment of his legacy from the land, where there are personal assets applicable to the payment thereof.-Congregational Church of White River Village v. Benedict (N. J. Ch.) 878. |