2. Pier erected by the grantee, on the excepted land, under a resolution
of the common council.] That the fact that the grantee constructed the pier
at his own expense under the resolution of the common council, could not
act as an estoppel against the city, since the common council had no power to
make a grant of land under water in that manner.
3. Right of the city to maintain ejectment.] That the doctrine that an
action of ejectment will not lie to recover an incorporeal hereditament was not
applicable. Id.
4. License to build pier.] That no authority was conferred by the
resolution of the common council of 1850 which amounted to a legal license
for the occupation of the land in suit for a pier, so as to exempt the occu-
pants from liability for damages, although such occupants were without
notice of the revocation in 1890 of any rights which had been granted by
the resolution of 1850. Id.
5. Conveyance of land, on condition that a church be built thereon
within a reasonable time-judicial notice-death of the grantee upon whom
the condition was imposed.] The owner of land conveyed it, in 1862, for a
nominal consideration, to the Rev. John Hughes, his heirs and assigns for-
ever, upon the condition "that the said party of the second part shall conse-
crate, or cause to be consecrated, the said property for the purpose of erect-
ing a church building, and shall, within a reasonable time, erect or cause to
be erected such building.
and the grantor and grantee having died, the heir at law of the grantor in
This condition not having been complied with,
1891 brought an action of ejectment for the granted premises against the suc-
cessor to the title of the Rev. John Hughes, who was in possession.
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Held, that the trial court, in the absence of evidence explaining the delay,
should take judicial notice of the fact that an unexplained delay of twenty-
nine years in commencing to build a church is unreasonable.
6. Intention that the condition should follow the land.] That it was
the evident intention that the condition should be annexed to and follow
the estate granted, into whosoever's hands it might come, and that the prop-
erty was not to be deemed relieved from the condition on the death of the
Rev. John Hughes, on the assumption that the condition was imposed
upon him only. Id.
Possession under a parol contract for the sale of land, and payment, as a
defense in ejectment — evidence as to the agreed purchase price.
See RIDDELL . CORNELL.
Employment to procure purchaser of real estate
ices in effecting an exchange.
See BRUNDAGE v. MCCORMICK.
Mortgage― statutory foreclosure — right of redemption
chased by the mortgagee - no trust created in favor of the mortgagor.
See LEWIS v. DUANE.
Grant of water for a mill-place of measurement of the quantity of
Their respective rights in growing crops.
VERDICT Of a jury.
See TRIAL.
VETERINARY SURGEON-Decision of a judge of Albany City Court
upon questions of fact — veterinary surgeon the rule as to skill and diligence.
See BOOм v. READ.
VICIOUS ANIMAL:
See ANIMAL.
See MUNICIPAL CORPORATIONS.
VINDICTIVE DAMAGES:
See DAMAGES.
WATER COURSES — Diversion of the waters of a natural stream
question for the jury.] In an action brought to recover damages for the
diversion of the waters of a natural stream, in which the only question for
the jury was whether the defendants had materially and perceptibly dimin-
ished the natural flow of water in front of the plaintiff's premises, it was
shown that a dam maintained by the defendants above the plaintiff's prem-
ises overflowed every day in the dryest time for its entire length, and that
when the defendants were operating their factory at the lowest state of the
water no perceptible diminution was seen in the stream running in its
natural bed.
Held, that a verdict for the defendants was supported by the evidence.
NEW YORK RUBBER CO. v. ROTHERY..
Acquiescence by a riparian owner in the building of a dam below him.
equitable estoppel by silence and acquiescence and settlement of boundary line.
See DEAN v. BENN..
Grant of water for a mill-place of measurement of the quantity of
See PALMER . ANGEL...
WHARVES Grant of land under water by the city of New York-
tion and reservation of land within street boundaries — pier erected by the grantee
on the excepted land, under a resolution of the common council - right of the
city to maintain ejectment.
See MAYOR, ETC., v. N. Y. C. & H. R. R. R. Co.....
Right of, to dower.
See DOWER.
WILL-Power conferred upon the testator's widow to dispose by will of prop-
erty remaining at her death.] 1. A will after making a small devise to the
testator's son, who was his only heir at law and next of kin, proceeded as
follows: All the rest, residue and remainder of my property and estate both
real and personal whether in law or equity of what nature or kind soever, I
give, bequeath and devise to my dearly beloved wife Mary Douglas Tyler, to
have and to hold the same and every part and parcel thereof to my said wife,
her heirs and assigns forever, provided however, that if any of the same
shall remain unexpended or undisposed of at the decease of my said wife,
what shall so remain, I give, bequeath and devise to my said son Ransom
Frederick Tyler, his heirs and assigns, and I expect and desire that my
said wife will not dispose of any of said estate by will in such a way that
the whole that might remain at her death shall go out of my own family and
blood relation. I have already advanced at different times to my said son
since he started out for himself or for his benefit, in the aggregate, over
$5,000, which is one reason why I do not now see fit to make a more liberal
provision for him in this will."
Held, that the testator's intention was to clothe his widow with power to
dispose of what remained of his estate in her hands at her death, by will, cir-
cumscribed by his desire that she should not so dispose thereof that the
whole of it should go out of his family and blood relationship.
2. Exercise of the power.] That a will left by the widow at her death
whereby she disposed of the portion of the testator's estate which remained
in her hands, giving a part thereof to the testator's son, was valid and
effectual. Id.
3. - Devise over, in case of the death of a prior devisee without issue — time
of happening of the contingency, with reference to the testator's death.] The
rule that where there is a devise to one person absolutely, and in case of his
death to another, the words of contingency refer to a death in the lifetime of
the testator, has no application when a prior devisee takes a life estate; and
where there are words in the context indicating an intention on the part of
the testator that the death of the devisee should refer to some other time
than that of the testator's death, effect must be given to such intention.
A will, after devising the use of all the testator's property to his wife for
her life, continued as follows: "I give, bequeath and devise to my children
Alfred Stokes, Charles E. Stokes and Clara McGee the rest, residue and
remainder of my property in equal proportions; but in case of the death of
my sons Alfred and Charles E., or either of them, without issue living at the
time of his decease, then the share of the one so dying without issue shall be
divided equally between my grandchildren Henry Weston and Porter
Weston." The sons Alfred and Charles E. survived the testator.
Held, that the devise over to the grandchildren was contingent upon the
death of the sons Alfred and Charles E., or either of them, without issue, at
any time, and that the contingency was not limited to a death before the
death of the testator. STOKES v. WESTON...
Instrument altering testamentary provisions — effect on a prior will of
the destruction of the second instrument animo revocandi
A testator made and duly published a will, dividing his property among
several persons; thereafter he made an instrument in the form of a will, which
testator's intention.]
gave all his property to one of the beneficiaries under the first will.
second instrument was imperfectly published as a will, in that the testator
declared to one of the subscribing witnesses thereto that it was a mere alter-
This
ation of his will, and not that it was his will. This second instrument con-
tained no clause revoking any former will, and the testator subsequently
destroyed it, with the intention of revoking it and of giving effect to the first
instrument as his will, but that intention was never manifested by any
writing.
Held, that the first instrument should be admitted to probate in toto as the
testator's last will and testament. MATTER OF JOHNSTON.
157
5. Meaning of the word "issue" in a will.] A testator, by his will,
devised certain real estate to his daughter as follows, viz., "during her natu-
ral life and if at the time of her death she shall have lawful issue then living
I devise to such child or children the said house, lot of ground and appurte-
nances, to them, their heirs and assigns forever."
Held, that by this clause, when considered in connection with other provis-
ions of the will, the testator intended to use the word "issue" as synonymous
with "children," and not as including grandchildren or descendants gen-
erally. DALY v. GREENBERG..
Power to take by devise, not suspended by imprisonment — section 707 of
the Penal Code-power of alienation not suspended by a devise on condition
subsequent.
See LA CHAPELLE v. BURPEE..
Power of sale after a definite term—not a suspension of the power of
See BUCHANAN v. TEBBETTS...
Appointment of the surrogate's brother as guardian ad litem.
See MATTER OF VAN WAGONEN..
WITNESS- Opinion evidence — not competent, where the facts are descrip-
tive and intelligible.] On the trial of an action brought to recover damages for
a personal injury caused by the giving way of a partition or "crib" in certain
coal storage bins, a civil engineer was permitted to answer, as a witness for
the plaintiff, questions calling for his opinion as to the safety of the crib in
question.
Held, that this was improper, as the questions and answers trespassed
upon the functions of the jury in deciding upon questions of fact.
The doctrine applied that opinions are to be admitted in evidence only
where the facts are not descriptive and cannot intelligently be communicated
to others. DAVIS 2. N. Y., L. E. & W. R. R. Co.....
YONKERS — Charter of the city of Yonkers — election of supervisors — con-
stitutionality of the amendment of 1892.
See PEOPLE EX REL. MCGRATH v. SUPERVISORS.
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