and to change its place of trial, is not too
late when made two days after joinder of
issue, although between the notice of such
motion and its argument defendant signs
a stipulation to take evidence out of the
State. In re petition of Granger v. Sheble,
92.
2. Said section of the Code does not require
that any demand should be made for a
change of place of trial prior to an applica-
tion therefor made thereunder.-Id.
3. Whether such an application should be
granted or not is purely a matter of discre-
tion.-Id.
4. To insure the granting of such an applica-
tion something more is required to be shown
than the mere fact that the defendant is not
a resident of New York County.-Id.
See HIGHWAYS, 7; NEGLIGENCE, 10.
See DEEDS, 3; ESTOPPEL, 2; FIRE INSUR-
ANCE, 2, 3, 6, 7, 16; NEGOTIABLE PAPER,
6, 7.
1. Where a horse is waranted to be " good,
kind and gentle, suitable for family use,'
the warranty is a general one, and the mea-
sure of damages resulting from the horse's
running away is the difference between the
horse's value as she was and her value if she
had been as waranted; injuries to the driv-
er, buggy and harness cannot be included.
Rich v. Smith, 36.
2. When the designation by which an article
is sold signifies that it is designed to be
used for a particular purpose, a warranty
that it is suitable for such purpose may be
implied from the designation itself.-The
Jefferson Iron Co. v. Thompson et al., 317.
3. When billets of iron made expressly to be
used in the manufacture of steel are sold,
and the understanding of both parties is
that they were purchased for such use, a
warranty is implied on the part of the seller
that they are reasonably and fairly proper
for that purpose.—ld.
See AGNCY, 2-4; MARINE INSURANCE, 1.
1. It seems, That a person having only an
equitable contingent interest in premises
may maintain an action for waste.-Lee v.
Whallon et al., 366.
1. Where a will bequeathed all of testator's
personal property, including money in
bank, to his two daugters absolutely, but
by a subsequent clause provided that, in
case of the death of both without leaving
any children surviving, the property should
go to testator's sister; but in case of the
death of either daughter without children,
that the survivor should have and hold and
be the owner of said property, Held, That
the true construction of the will was that
the testator intended to give his daughters
an absolute interest in case they or either of
them survived him, and that event having
happened no interest, present or contin-
gent, vested in the testator's sister; that
the clause in question should not be con-
strued to limit the absolute bequest to a life
interest.—In re accounting of Tallmage, 69.
2. Testator by his will gave to his daughter
the sum of $25,000, and directed that $8,000
thereof be given to her son T. on his arriv
ing at the age of 21 years, but in case he
should die before that age without issue,
the sum "directed to be paid " to him was
given to his brothers and sisters on his
mother's death. Held, That the executor
was required by the terms of the will to pay
the whole sum of $25,000 to testator's
daughter; that such payment discharged
him, and that she received $8,000 thereof as
trustee for her son.-In re estate of Denton,
84.
3. The will in question was in the hand-
writing of testator and contained the usual
attestation clause. One of the witnesses
testified that all the statutory requirements
were complied with; the other testified
that he signed at the request of testator, but
did not know what the instrument was.
Held, That the proof was sufficient to estab-
lish the will.-In re will of Bogart, 141.
4. A will devised certain real estate to the
executors in trust to receive rents, &c., and
to pay to two of testator's grandsons or to
the survivor of them a specified sum on be-
coming twenty-one, the trust to continue
until testator's son C. arrived at the age of
25, he to have the income less said sum dur-
ing life, and if he should die leaving lawful
children said real estate to be theirs on ar-
riving at the age of 21. Held, That there
was no unlawful suspension of the power of
alienation.-Radley et al. v. Kuhn et al., 178.
5. A will devised certain real estate to testa-
tor's widow for life, with remainder to
plaintiffs; it then gave the residue to plain-
tiffs in equal shares, subject to dower, "the
same and all other property given and de-
vised to them to be to their sole and sep-
arate use," &c. Then followed a habendum
clause for life, with remainder to plaintiffs'
respective lawful issue or on failure thereof
to the survivor. Held, That the habendum
clause applied only to the residuary estate
and that plaintiffs took estates in remainder
in fee simple in the premises first devised.
-Temple et al. v. Sammis, 311.
6. Where the testator gave to his wife "$9,100
absolutely, in lieu of dower," and specific
sums were given to other persons, a subse-
quent clause that if a sufficient sum was
not realized from a sale of his real and per-
sonal estate to pay all of the said sums, then
my said legatees to be paid their shares in
the same ratio as hereinbefore bequeathed,
and should there be a larger sum realized
than the total amount of legacies, then the
surplus to be applied to each share in the
same proportion, Held, that it was not in-
tended to abate the legacy of the wife in
case of land selling for less than a given
sum, but such legacy was an absolute gift
to free the land and estate, if accepted.-
Mehl v. Hilliker et al., 416.
7. Where an estate is devised to the widow
for life, and she is appointed executrix
with power to sell the same or so much as
may be necessary to supply her wants, the
power is a beneficial one, since no person
other than the donee has, by the terms of
its creation, any interest in its execution;
and her estate is changed thereby into a fee
simple absolute in respect to the rights of
creditors and purchasers, but subject to
any future estate limited thereon in case
the power should not be executed, or the
land should not be sold for the satisfaction
of debts.-Leonard v. The Am. Baptist
Home Mission Soc. et al., 439.
8. In such case, the Court will not entertain
a suit at the instance of the executrix for
the purpose of ascertaining and determining
whether or not the contingency upon which
a sale was authorized had not happened
within the true intent and meaning of the
will. It is not for the Court to ascertain
and determine whether it is necessary that
any portion of the real estate should be
sold, and, if so, what portion, since that
power is conferred upon the executrix her-
self.-Id.
9. One C. died in 1845, leaving a will which
devised certain real estate to trustees for
the benefit of M., her married daughter,
and provided that it should not be liable
for M.'s husband's debts, and that he
should in no event have any interest therein.
The devise was subject to the power and
authority of M. to dispose of the real estate
by grant or devise. Held, That the trust
and power were both valid and operative,
the power related only to the remainder,
and could be delegated.—Crooke v. Prince,
10. In 1855 M. procured the trust estate to
be conveyed to her, and on her death de-
vised all her real estate to her husband for
life in trust for her children, and author-
ized him to sell and convey the same
"either in fee or lesser estate," and invest
the proceeds. Held, That the wife fully
and completely disposed of the whole es-
tate; that the power granted to the hus-
band did not unduly suspend the power of
alienation.-ld.
11. A testator gave his wife the income of
his estate for life and in addition authorized
her to use such part of the principal as she
might from time to time, in her judgment,
require to maintain her in a manner suit-
able to her station in life. This provision
was stated to be in lieu of dower. He then
gave the remainder of his real and personal,
after her death, to certain nephews and
nieces. Held, That the wife might use,
if necessary in her judgment, the whole
principal; that a surrogate could not re-
quire her to account for her expenditures
made under the above clause, and that for
such expenditures she was not accountable
to the remainder-men. In re estate of
Dickerman, 493.
12. Testator, by his will gave all his estate to
his executors with power to receive rents,
&c., sell, mortgage and convey his estate,
upon trust to divide and distribute the
estate, after payment of debts, among
testator's four children equally. Held,
That no valid trust in the real estate was
created by the will; that the children are
vested with the title as devisees in fee, and
that a receiver appointed on the removal
of the executors had no authority to execute
the power of sale.-Cooke v. Platt et al.
impld., 498.
See EXECUTORS, 1, 7, 8; HUSBAND AND
WIFE, 1; MORtgage, 13, Trust, 9.
|