trust him."

The witness also testified that she remembered particularly that upon the paper originally dated 1884 there was contained a bequest of the testator's glasses to those who would take them or have them. She was asked, "Did you know whether there was any other writing on the papers?" and answered, "That I don't remember."

said, Mr. McIntire told me that that made no | reference to the glasses, he again examined difference. I had perfect confidence in him; the papers, and thought it was then he discovhe was a lawyer, and I knew nothing about ered that a portion had been torn off. He was it; he was my uncle, and I thought I could asked, "Did you know of any other writing on those papers besides the expression about the glasses, to which you have referred, that is not there now?" and answered, "I do not, sir," On cross-examination, the witness tes tified that he had a distinct and clear recollection that the codicil was a complete sheet at the time it was taken from the chest, and that it was probably within a month after the probate of the will that he discovered that it had been mutilated. He could not, however, assign any reason why, after being informed by his wife of the alterations on leaving the courthouse immediately after the probate of the will, he did not at once return, and if the fact was as claimed call the attention of the court to the matter. The witness further testified that for a good while after the probate he thought his wife was a legatee under the will. [395 He made the second examination of the will at the court-house before the intimation from Mr. McIntire that his wife would have no interest under the will, "so as to know of my [his] own knowledge that these corrections had been made." When asked how he bappened to discover that a part of one paper was

On cross-examination, in answer to the question how she came to make the examination of the papers which resulted in discovering that a portion of one paper had been torn of, the witness answered that it was indirectly caused by receiving an intimation from her uncle, Edwin A. McIntire, that her brothers, sister, and herself would not be beneficiaries under the will, and that on such second examination she discovered that there had been slight alterations in two letters "of" that she had not noticed on the day the will was probated, and she also then noticed that a fold of the second paper was torn off, because she missed the provision about the glasses. The witness claimed that the bequest of the glasses was impressed upon her memory because of the oddity of the ex-torn off, he answered: "Because it was a whole pression concerning them. She also testified that she had the paper sufficiently in her mind to miss anything that was taken out of it that had been impressed upon her memory. She was then asked, "Now, would you say to the jury that there was no other writing on that fold that you say was torn off?” and answered, "That I do not remember; I can't say that there was or was not." The witness also tes tified that she was prejudiced against her aunts and their brother on account of an alleged conspiracy on their part to hurt her husband's good name; that the contestant came to see her about the will in February or March, 1885, at a time when she was dissatisfied because she 394] was not a beneficiary under it. She further testified that she thought the will as probated was all right, and should stand as the last will of David McIntire, until she discovered that she was not to be benefited by it.

Mr. Galliher testified that he read and examined the papers found in the tin case; that he thought the paper now dated January 7, 1880, was the same paper except as to the alterations already referred to; that the paper now dated January 1, 1880, was originally dated January 1, 1884, and that he made a copy of it on April 1, 1884, and that he made a memorandum of the items on the other, which memorandum, however, was not exhibited. He said that at the time he signed the affidavit for probate of the writings he probably read the affidavit which he signed, but did not notice the alterations, and first learned of them from his wife upon leaving the court-room. He did not then return to examine the will, but some time after went back and looked at the papers and then discovered the changes of date and the alterations of the word "the" to "this" and the erasure of the word "of," but did not think he then noticed that a part of one sheet was gone. Subsequently, on his attention being called to the absence of the provision in

sheet at the time I turned it over to E. A. McIntire, and this bequest was on there in regard to the glasses; that portion of the sheet had disappeared and that bequest was not on there.' Despite the discovery of the alleged alterations and mutilations referred to, the witness said he did not go to see Mr. McIntire or demand from him an explanation, and did not call the attention of anybody to the subject until some six or eight months afterwards, when he spoke of it in the office of certain attorneys, on being interrogated in regard to the alterations. Prior to that, after hearing from Mr. McIntire that his wife would not share in the estate, witness consulted an intimate friend, a lawyer, but the witness said he did not think he told him that the will had been mutilated and altered.

Emma V. McIntire testified that on her inspection of the writings when they were taken from the chest on April 1, 1884, there was no paper dated January 7, 1880, but that the paper now bearing such date was one of the papers found, except as to the date; also that the words "of the city of" in said paper had been altered to read "of this city." This wit ness also testified that she thought the second paper, now dated January 1, 1880, was one of the papers found in the chest, except that the date was January 1, 1884, when she first saw it, and that a remark to the effect that the paper was written the January previous to the death of testator was made at the time the papers were examined on April 1, 1884. She also testified that she thought the second paper was "originally a complete sheet; just the length of the other one.' She remembered having heard the paper read, and that there was some remark in it about glasses. She further testified that both papers were read aloud, and that then each one took them and read them severally, and that they all *supposed that she [396 and her sister and brothers were entitled to

the share in their uncle David's estate, which would have come to their father had he lived. The witness also swore that she did not dis cover the alterations when she verified the affidavit in the probate court, wherein she averred the authenticity of the documents. though she read the papers carefully at the time she made the affidavit, which latter statement, however, was subsequently qualified on cross examination by the statement that perhaps she had not read them as carefully as she ought to have done. She further stated that she did not notice the alterations until her sister called her attention to them.

materially changing its provisions, such fact would in the very nature of things have been impressed upon their minds above and beyond everything else. When, therefore, after swearing to the validity and completeness of the will for the purpose of probate, after asserting rights under it in the equity suit filed against the administrator, they subsequently declared that they did not recollect whether there had been any material alteration or suppression, their want of memory necessarily negatives the presumption which might otherwise result from their testimony, if their sources of information and relation to the will had not been The foregoing condensed summary is sub- of the kind just mentioned. This is particustantially all the testimony given by Mr. and larly the case as to the testimony of Mr. GalliMrs. Galliher and Emma V. McIntire, bearing her. He not only examined and read the will upon the question of the alleged material alter after the death, not only testified as to its comations and suppression of the documents con- pleteness when it was probated, but actually stituting the probated will. As already stated, made a complete copy of the will proper, and these witnesses were the only ones who testi- a memorandum of the items on the other paper fied on this subject on behalf of contestant, or codicil at the time when it was examined and upon their testimony the case necessarily and before it was turned over to E. A. McIntire depends. If we leave entirely out of view the to be probated. The context of his testimony evidence of the defendants to the effect that indicates that, before he testified at the trial, he the papers constituting the will as probated refreshed his memory by reference *to [398 were precisely in the condition they were when the contemporaneous copy and memoranda. taken from the tin case, we do not think a jury It follows, therefore, when in answer to the could have properly inferred from his testi-point-blank question, "Did you know of any mony that in the alleged missing portion of other writing on those papers besides the exthe will there existed provisions so in conflict pression about the glasses to which you have or inconsistent with the probated will as to referred that is not there now?" he said, "I do have operated to materially alter or revoke it. not know, sir," that he negatived the possibilThat the actual alterations to which the wit-ity of there having been such material alteranesses testify in no way materially modified or tions, because his means of knowledge were abrogated the will is too clear for discussion. such that he must necessarily have known of The whole case, hence, depends upon the as- the fact had it existed. Indeed, we can sce sertion that there was sufficient evidence to no reason to doubt that if the issue presented have authorized the jury to find that there was had been probate vel non that the testimony ina material mutilation or suppression. But troduced by the contestant here would have none of the three witnesses testified-granting justified the admission of the documents to their testimony as to the mutilation to have probate, that is, after eliminating the immatebeen true-that the part torn off contained rial alterations which the testimony of the anything but the reference to the glasses of contestant asserts to have been made. This the testator. It is urged, however, that whilst being true, it follows that the testimony which they recollected that the torn off part had in it would have been adequate to probate the will the memoranda as to the glasses, they did not cannot, at the same time, be sufficient to deremember whether it embraced anything else, stroy the probate and annul the will. 397]and, therefore, *non constat, that it might The case of Jones v. Murphy, 8 Watts & S. not have contained other things, and thus would 275, relied upon by the plaintiff in error, is have justified the jury in drawing the pre- not in point. In that case the existence of a sumption of a fraudulent suppression of pro- second will was proved, which the evidence visions which, if known, might have revoked tended to show had been destroyed by interor modified the will. But this contention en-ested parties, but there was an absence of tirely obscures the difference between the direct evidence of the contents of the missing failure of a witness to recollect a fact, which paper. Evidence was introduced, however, from the nature and extent of his knowledge justifying the inference that the testator might he must necessarily have recalled if it existed, have designed an alteration of the provisions hence giving rise to the implication that, where of the earlier will in favor of a daughter, from it is not remembered it did not exist, and the whom he was estranged when the first will contrary case, where from the position and was executed, but who subsequently became means of knowledge of a witness, his failure reconciled to her father. The court held that to remember justifies no such deduction. The where a fraudulent suppression was proved, failure of these witnesses to remember comes and, in addition, other circumstances, such as clearly under the first of these categories. a motive for a material change in a former They were willing and friendly witnesses for will, the jury, in the absence of evidence as to the contestant, manifestly desirous of stating the contents of the later testamentary writing, everything favorable to his claims. They ex might presume that it contained a clause reamined the will immediately after the death; voking the prior will. Here, however, we they then not only heard it read aloud, but have two documents, the will proper, evidently also read it themselves; they then thought that deliberately and carefully written, and another they were interested in it as legatees. If any instrument having the effect of a codicil, both provision had existed revoking the will, or being sedulously preserved by the testator. It

and naval hospital, and that by chapter 355 of an act of the legislature of the state of New York, passed June 17, 1853, that state ceded to the United States jurisdiction over the lands acquired for the purposes stated. The statute of the state of New York making the cession provided as follows:

is an asserted change or suppression in the latter | lands acquired by the *government of the[400 instrument which, it is contended, would have United States for the purposes of a navy yard justified the jury in finding the will to have 399]been revoked, although the testimony affirmatively established that even if the suppression asserted existed, it contained no provision revoking the will. The necessary effect of the action of the trial judge in directing findings favorable to the contestees was to hold that the contestant was not entitled to relief. In this conclusion we concur, although the negative answers given to the 5th and 7th questions are not literally accurate, in the light of the evidence as to the immaterial alterations offered on behalf of the contestants. The judgment is therefore affirmed.

"1. The jurisdiction of this state over all lands in and adjacent to the city of Brooklyn, belonging to the United States, and used and occupied as a navy yard and naval hospital, and which has not heretofore been ceded to the United States, is hereby ceded to the United States for the uses and purposes of a navy yard and naval hospital, on the condition contained in this act, and according to the

WILLIAM H. PALMER ET AL., Piffs. in plan furnished by the Navy Department, and

Err.,

v.

MARY H. BARRETT.

(See S. C. Reporter's ed. 399-404.)

bounded as follows:

2. Such jurisdiction is ceded as aforesaid on the condition that the United States shall pay, or cause to be paid, to the city of Brooklyu the sum of $11,383.73, with interest from the 1st day of February, 1852, until paid, be

Jurisdiction of state courts over land leased by ing the balance of an assessment now due on

the United States.

A lease by the United States to a city for market purposes, of vacant land which was a part of land ceded by the state to the United States for the purposes of a navy yard and naval hospital, with a provision that the United States may retain such use and jurisdiction no longer than the premises are used for such purposes, operates, at least while the lease is in force, to suspend the exclusive authority and jurisdiction of the United States over the leased land, and thereby makes it subject to the jurisdiction of state courts in an action for ouster therefrom.

[N ERROR to the City Court of Brooklyn,

NEW YORK, to review & judgment of that court after affirmance thereof by the Court of Appeals of that state rendered in favor of the plaintiff, Mary H. Barrett, against the defendants, William H. Palmer et al., in an action for damages for unlawful ouster of plaintiff from the possession of two market stands in the city of Brooklyn, etc. Affirmed. See same case below, 135 N. Y. 336.

a part of said lands for grading and paving Flushing avenue.

"4. The United States may retain such use and jurisdiction as long as the premises described shall be used for the purposes for which jurisdiction is ceded and no longer.

Nor shall the jurisdiction so ceded to the United States impede or prevent the service or execution of any legal process, civil or criminal, under the authority of this state.

"5. Nothing in this act contained shall be construed so as to allow the common council of the city of Brooklyn hereafter to tax or assess any of the lands of the United States for any purpose whatsoever."

In October, 1884, an agreement was entered into between the commandant of the Brooklyn navy yard, representing the Navy Department, and a commissioner of the department of city

works of the city of Brooklyn, which agreement recited that permission was granted to the city of Brooklyn to occupy certain described portions of vacant" government *land [401 situated on Washington and Flushing avenues, in the city of Brooklyn, "to be used only as a stand for the market wagons bringing produce into the city from the adjacent country and those with whom they trade; that the city of Brooklyn will patrol and efficiently police Statement by Mr. Justice White: the said premises from the hospital wall on the This is a writ of error to the city court of east to the navy yard fence on the westerly side Brooklyn, an inferior court of the state of of Washington avenue; that no permanent New York. The action was brought to re- buildings or structures be erected on the lands, cover dainages for an alleged unlawful oust there being no objection to the erection of er of the plaintiff from the possession of two woo len booths, sheds, or other temporary market stands in the Wallabout market, in the buildings for the sale of groceries, farm procity of Brooklyn, and to recover damages for duce, horse feed, and other goods for restauthe conversion of certain described personal rant purposes, and for the purpose of shelter property which was a part of said stands. from the weather; and that during the occuDefendant Palmer answered by a general depancy of said premises by the city of Brooknial, while the defendant Droste, in addition lyn the water tax for water consumed by the to specific denials, alleged in substance that he navy yard be reduced to the same rate as that lawfully acquired the premises in controversy charged to manufacturing establishments in by a lease from Palmer, his codefendant, and the city of Brooklyn." The agreement further a lessee of the city of Brooklyn. provided that the permit in question might be It appeared from the proof that the stands terminated at any time on thirty days' notice in question were erected upon ground,' part of | from the Secretary of the Navy, when the city

should be entitled to remove all property | legislation over all places purchased by the thereon not belonging to the United States.

At the close of the testimony counsel for defendant moved the court to dismiss the complaint, because of a want of jurisdiction over the subject-matter of the action. This want of jurisdiction was based on the contention that the land upon which the stands were erected was to all intents and purposes territory of the United States, and that as the action was local in its character the courts of another sover-States. Looking at that act, we find that it eignty could not entertain jurisdiction.

This act rather tends to make certain what would be inferable from the New York statute, that the land in question had been purjurisdiction of the United States, it is clear chased by the United States without the consent of the state being given at the time the purchase was made. If, therefore, we assume that the lands were acquired by the government 403]*by purchase, still § 8 of article 1 of the Constitution of the United States, conferring upon Congress authority to exercise exclusive

question which the case presents, and the judg. filed their second amended complaint in this ment below is therefore affirmed.

Submitted November 19, 1895. Decided April the amount set out in a certain written con

NOTE.-A8 to when specific performance decreed, | performance. Emrich v. White, 102 N. Y. 657; Gale and when refused, see notes to Hepburn v. Dunlop, 4: 65: Colson v. Thompson, 4: 253; and Brashier v. Gratz, 5: 322.

One seeking specific performance must fulfil the contract on his part; offer to perform; excuse for omission; impossible compliance; substantial compliOr that defendant by his conduct has rendered ance; condition precedent; mutuality of perform-compliance with the contract on plaintiff's part impossible or vain. As where the obligor has performed the most of his contract and the remainder is voluntarily done by the obligee although the obligor has been ready and willing to do all himself. Church v. Steele, 1 A. K. Marsh. 323.