the defendant to the Erie Railway Company, for 490 years, reserving rents
and containing a covenant for quiet enjoyment. Held, that this was sufficient
in the absence of any dispute on the trial, to establish the ownership of the
road by the defendant.
CONHOCTON STONE ROAD Co. v. BUFFALO, N. Y. AND ERIE R. R. Co.... 523
3. Variance.] The complaint charged the defendant with constructing
the bridge and embankment, while, upon the trial, it appeared that they were
created by a predecessor of the defendant, and that it was liable, if at all, for
continuing the same. Held, that the discrepancy between the complaint and
the evidence was a mere variance, and not a failure to prove the substan-
tial cause of action set forth in the complaint, and that it was properly dis-
regarded. Id.
Evidence of expert as to obstruction of water by bridge — when admis-
sible.] Upon the trial the defendant offered to prove by an expert, that the
abutments of the bridge were properly and skillfully placed, and sufficient to
discharge the water in time of flood, which evidence was, against the objection
and exception of the defendant, excluded. Held, that this was error. If the
bridge was built in a careful and skillful manner, with all necessary openings
to discharge all the water flowing down the creek in any freshet which might
reasonably be expected, the defendant was not liable. Id.
5. Sanction of State — when a defense.] Where one has the sanction
of the State for what he does, unless he commits a fault in the manner of
doing it, he is completely justified.
6. Power of legislature to make running stream public highway.] The
legislature has power to appropriate, by force of its own enactment, any
flowing stream to the use of the public as a highway, provided suitable pro-
visions are made to secure to private parties a just compensation for the indi-
vidual rights which, by the appropriation, are divested, infringed upon, or
impaired. PARTRIDGE v. EATON..
Chap. 273, 1872, declaring Otter creek public highway-Rights of
riparian owner.] In 1872 the legislature passed an act (chapter 273, Laws of
1872), declaring Otter creek to be a public highway for the purpose of floating
logs therein, and providing that the damages sustained by the riparian owners
should be assessed by commissioners. The plaintiff claimed the act to be void,
on the ground that he possessed the exclusive right to use a portion of the
said creek flowing through lands of the defendant, for the purpose of float-
ing logs, such right having been acquired from the defendant's grantors, and
that no provision was contained in the act to compensate him for the loss of
such right. Held, that the parties under whom the plaintiff claimed, had no
right in the stream other than such as vested in them as riparian owners,
and that as plaintiff had no greater rights than they had, he was the mere
representative of such owners, and was embraced within the description of
riparian owners used in the said act.
Id.
WILL-Witness - when opinion or conclusion of, inadmissible.] 1. Except in
matters of science, art, skill, trade, navigation, value, and other similar
inquiries, witnesses are confined in their statements to facts observed and
known by them, as distinguished from their opinious and conclusions.
Where probate of a will is contested upon the ground of the mental and
physical incapacity of the testator, witnesses cannot state the opinions and
conclusions drawn by them from his acts and motions, but should confine
their testimony to the acts and motions themselves.
2. Decree of surrogate - presumption in favor of] The court cannot
reverse the decree of the surrogate, unless it appears to have been errone-
ously made. The presumption is in favor of its correctness. Id.
Expression of testator's thoughts and desires by sounds and motions.]
Where an application is made for the probate of a will of a person, who at
the time of its execution was suffering from paralysis, and was unable to
speak or articulate distinctly, on the ground that he was able to express
his thoughts and desires by certain sounds and motions made by him, the
character and meaning of such sounds and motions must be clearly and
unequivocally established. Id.
4. Alteration in will a fraud, when testator's condition such that he can
not detect it.] By a former will the deceased had devised to his wife a life
estate in a house, which was subsequently sold by him. Afterward he
directed another will to be prepared, in which the house in which they then
lived, should be given to his wife in place of the one which had been sold.
The will, prepared in pursuance of such directions, and executed by him,
devised the house in fee to the wife, and also contained a bequest to her
of one-third of the personal property. Held, that as his condition was such
that he could not detect the alteration upon hearing the will read over, such
alteration was a fraud of so material a character as to require that the instru-
ment should not be admitted to probate. Id.
5. Undue influence — when presumed.] Shortly before his death the
deceased, who was at that time helpless and dependent, and entirely subject
to the influence of his wife, made, under her direction and procurement, certain
changes in a will, formerly executed by him, all of which were entirely for
her benefit. Held, that the presumption was that they resulted from her
influence, unduly and improperly exercised over him. Id.
6. Construction of] Plaintiffs' testator by his will devised and be-
queathed the use of a homestead and all the personal property therein to his
wife, and also gave "unto her during her natural life the use of $20,000."
Held, that the widow took only a life estate in the homestead and in the per-
sonal property therein. HOUSE & RAYMOND...
7. Construction of] The will further provided: "I hereby give, etc.,
unto my executors all the rest, residue and remainder of my real estate and
personal estate, in trust, nevertheless, for the uses and purposes hereinafter
named, to wit: First, to divide the same into seven equal parts: Then followed
directions that the several parts be kept invested, and the income thereof paid
over to certain beneficiaries in the will mentioned. Held, that the effect of
the foregoing provisions was to give to the executors for the purposes of the
trust, all the testator's property (real and personal) not required to pay
legacies, subject to the provisions made for his wife; and that the executors
were to invest the same as far as it was capable of investment, and divide and
apply the income for the benefit of the children and grandchildren during
life. Id.
8. Power of sale.] The testator authorized his executors to sell his
real estate whenever they and his wife (his executrix), unanimously thought
that such sale would be advantageous to her estate. Held, that, after the
decease of his wife, his surviving executors were authorized to sell the real
property. Id.
9. Bequest contingent on reformation of legatee-when not vested.]
When a testator leaves his son the income of $1,000, to be paid to him by his
executors during a certain time, and directs that, at the expiration of that time,
if the son has reformed, he be paid the $1,000, and otherwise, that it be paid
over to other parties: held, that, the son dying before the expiration of the
time without having reformed, it was the intention of the testator that the
probationary period should end with the life of the son, and that the $1,000
never vested in the son. SMITH V. ROCKEFELLER.......
10. Action for construction of — when executor personally chargeable with
costs in.] When, in an action brought for the construction of a will by the
executor, the court finds that it was not a proper case to apply to the court
therefor; that the plaintiff has used the funds of the estate in his individual
business; and refuses to find that plaintiff acted in good faith, or was ready
and willing to pay over the funds to the persons who might be entitled
thereto: held, that plaintiff was properly charged personally with costs, and
five per cent additional costs. Id.
Devising wife's right of dower · -construction of] The plaintiff's tes-
tator, by his will, gave to his wife an annuity of forty dollars in addition to
her i
right of dower;" he then devised all his real estate to his son Isaac,
except his wife's dower," on condition that he should pay certain legacies
bequeathed to his other children; all the rest, residue, and remainder of his
estate, including his "wife's right of dower, after her decease," he gave to
his grandchildren, authorizing his executor to sell his wife's right of
dower after her decease," for the purpose of dividing the same. Held, that
by the words "right of dower," the testator intended the one-third part of
his real estate, and that the wife was entitled to the use thereof during her
life, and that the grandchildren were entitled thereto upon her decease.
ROBERTSON v. HILLMAN
Legacy, given to discharge debt of testator, does not lapse by death of
legatee.] Defendant's testator bequeathed to one Cole the sum of $1,500,
upon condition that he should not render any account against his estate.
The legatee died before the testator, who was at the time of his death indebted
to Cole's estate to an amount less than $1,500. The plaintiff notified the
defendants of her acceptance of the legacy. Held, that the legacy did not
lapse by the death of Cole; that upon its acceptance by the plaintiff, a con-
tract was completed by which she became entitled to the legacy, not as a
bounty, but as the purchase-price of the claim which was thereby canceled
or abandoned. COLE v. NILES..
13. Execution of -- how proved.] The statute does not necessarily con-
template that a testatrix should declare, "in words," an instrument to be her
will. It is enough that the decedent makes known to the witnesses by acts
and words that it is regarded and accepted as her will, and that the witnesses
subscribed it as such at her request.
This may be established as matter of fact by one of the witnesses, even
when the other has forgotten what transpired. THOMPSON v. LEASTEDT......395
14. Action for construction of — answer in when stricken out.] In an
action brought to obtain a construction of a will by which one-fourth of the
residue of the testator's estate was devised and bequeathed to his executor
in trust for the life of one of the defendants in the action, with power to the
executor to convey such portion to defendant at any time when the executor
should be satisfied that he would make a prudent and proper use of it: held,
that that portion of an answer asking an adjudication that the executor was
satisfied that the defendant would make a prudent and proper use of such
part of the estate, was properly stricken out. It was a matter discretionary
with the executor, and formed no part of the controversy which the action
sought a settlement of. MCLEAN v. MCLEAN......
15. Bequest of money to one for life - when remainder over is void.]
Where a testator, by his will, bequeathed "unto my beloved wife, Catharine,
the sum of $1,650 in lieu of dower in my real estate, for her support during
her natural life, or as long as she remains my widow, then her said dower
shall be transferred to my three children;" held, that the widow took the
absolute title to the money, and that the bequest over was void.
16. Bequest for life of things consumed in the use.] A gift for life of
things, quæ ipso usu consumuntur, if specific, is a gift of the property, but if
residuary, then the things must be sold, and the interest of the sum arising
therefrom paid to the legatee for life. Id.
Married woman cannot make a will during infancy.
See ZIMMERMAN v. SCHOENFELDT
WITNESS- Opinion of, based on facts testified to by another ·
See SWIFT v. MASS. MUT. LIFE Ins. Co...
When opinions and conclusions inadmissible.
See ROLLWAGEN v. ROLLWAGEN
When may consult paper and testify to fact recorded by it.
See ZIMMERMAN v. SCHOENFELDT..
Cross-examination-power of judge at circuit to limit.
See HALLOCK v. RANDALL.
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