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estate in the water and aqueduct so as to prevent it passing by deed of tlie
premises from such grantee to succeeding grantees, and the latter may recover
damages from the original grantor for cutting off the aqueduct on adjacent
land, owned by him, and thus disturbing the water privilege. 1870. Coolidge
V. Hager (48 Vt. 9), V, 256.

16. Injury from water artifiolally coUeoted. Defendants built a reservoir
on land sold to them by the plaintiff for that purpose. Water from the reser-
voir percolated through the soil and injured plaintiff's adjacent lands. Held,

Digitized by



that defendants were liable for the damages. 1871. Wilson r. Oii^ of Nem
Bedford (108 Mass. 261), XI, 352.

16. Obstruoting flow hooK a41*o«nt high«r Uuid. A land owner may, in the
reasonable use of his own land, lawfully prevent the flow of sarfaoe water <»
to his premises from the adjacent higher land of another, althoagh sadi
adjacent land is thereby injured ; and the fact that such water has been wont
to flow upon the inferior land for over twenty years will not amount to a pre-
scription. 1870. &u>€tt V. Cutts (50 N. H. 489), IX, 276, and note, 284.

17. The erection of an embankment on one's own land, whereby the sur-
face water accumulatin^r on the land of another, is prevented from flowing off
in its natural courses, and caused to flow in a difibrent direction over hie land,
is an act for which an action may be maintained by the latter, without show-
ing any actual injury or damage. 1871. Tootle v. Cltfton (22 Ohio St. 247),
X, 782.

18. Waters peroolating in the soil belong to the owner of the freehold, and
he may use them as he chooses, free from any usufructuary rights in others.
1871 Haneon v. McOue (42 Gal. 808), X, 299 ; WiUon v. CUy of New Bedford
(108 Mass. 261), XI, 852.

19. Defendant was the owner of a spring supplied by percolation only,

and having no natural channel or outlet. There' was an artificial channel
which had for fifteen years conducted the water to plaintiff's land below. In
an action to restrain defendant from digging on his own land so as to divert
the sources of the spring, JtM, that plaintiff had no such interest in the spring
as would support the action, and that the user would not support the presump-
tion of a grant of an easement Haneon v. McOue, supra,

20. A land owner dug a well for the use of his funily and stock,

thereby preventing the water from reaching, by percolation or underground
currents, the spring or open running stream of an adjoining owner. Held, that
this was not acUonable. 1871. VUlage of Delhi v. Toumam (45 N. T. 362).
VI. 100.

21. A municipal corporation will be reetrained from draining the surface
water from its lands upon the lands of an adjacent owner. 1870. Pettigrew v.
Village of EvansmUe (25 Wis. 228), UI, 50.

22. Municipal corporations cannot so adjust the grade of its streets as to

turn surface water upon the lots of adjacent owners : nor can it lawfully per-
mit property owners on a street to fill up a portion of the street in front of
their lots in such a manner as to turn the surface water upon the property of
others. 1870. CUy of Aurora v. Beed (67 HI. 29), XI, 1.

23. A municipal corporation, by raising the grade of a street, obstructed

the flow of surface water from adjacent higher land, to the injury thereot
Held, that the owner of the land could not maintain an action for damages.
1871. Hoj/t V. The City of Hudson (27 Wis. 656), IX, 478.

24. Fishways in dams. While the State has the power to require fish ways
to be made in dams, it cannot impose the expense of making sudi ways in
dams already constructed as that would be a taking of private property for

Digitized by



pablic use withoat jost oompenBation. 1870. CommanweaUh ▼. Penmylwinia
Canal Co, (66 Penn. 41). V, 829.

26. A ■traun oapable of b«iiig oommonlj and ganerally oaefnl for floating
boala, lafta or logs for any osef al porpoaa ia sabject to the public oae as a
paaaage-way. 1869. F«tM ▼. i9tn»CA (8 Or. 445), VUI, 621.

26. Right of pnblio to oae banka. Defendant, in using a stream for floating
logs, attached a boom to plaintiff's land. In an action for damages, the judge
instructed the jury that, if the stream was adapted to floating logs, and a boom
was necessary for that purpose, the plaintiff's right was subrogated to a reason-
able use by the publia Held correct. lb.

27. Floatiiig logs. In the absence of prescription or user, it is not a public
right to float logs down a non-navigable stream which is only fit for that pur-
pose during periodical freshets ; the bed and banks of such a stream are under
the absoluto ownership and control of the riparian owner. 1870. Hubbard v.
DeU (54 111. 110), V, 98, and note, 108.

28. Railroad along bank of navigable rivar. A railroad company, in pur-
suance of alleged franchises embraced in their charter, constructod their track
along the bank of a navigable river, below high-wator mark, thus cutting off,
without compensation, the riparian owners from the benefits incident to their
property from its contiguiiy to the water. Held, that the title of owners of
lands bordering on tide waters ends at high-wator mark ; that below the ordin-
ary high-water mark the title to the soil is in the State ; and that the riparian
owner has no righto beyond high-water mark, aa against the State or ito gran-
tees. 1869. at$9&ne v. PatUrean and Newark B. B, Co, (84 N. J. 582), UI, 269.

29. The qneetion whether the legislature intended to grant the right of

building a railroad on soil aituated below high-water mark will be determined
by an inapection of the charter. A specific grant is necessary to convey such
right, lb.

30. —A riparian owner cannot recover damages for being deprived of
acceaa to a navigable river by reason of the building of a railroad along ito
banks below high-wator mark. 1871. TovnUn v. The Dubuque, Belletw dt
MiiMienppi B, B. Co, (82 Iowa, 106), VII, 176, and note, 179.

31. Whara a new ahora ia fonnad on a xirar not navigable, by the alluvial
depoaite taken from the oppoaito aide by the wearing away of the stream, the
land on the new ahore ia to be divided between the owners entitled to it, accord-
ing to the following rule : " Give to each owner a share of the new shore line
in proportion to what he held in the old shore line and completo the division
of the land by running a line from the bound between the parties on the old
shore to the point thus aacertained on the new. 1871. BaeMder v. Kenieton
(51 N. H. 496), XII, 148.

32. Tha owner of land bonndad on a laka, whether navigable or not, has
title to the land left dry by the gradual and imperceptible receding of the
waters. 1867. Warren v. Chambere (25 Ark. 120), IV, 28.

33. Bkldga over navigabla riT«r. A State legislature may authoriae the
tonstruction of bridges over the navigable rivera of the State, provided they

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io not materially injure navigation 1868. Chicago t. McGinn (51 111. dM), II.
295. See Constitdtioral Law.

34. The common council of Chicago, in pv^rsoanoe of a power granted in

their charter, paased an ordinance to the effect that the draws of the bridges
over the Chicago river should be closed every ten minutes, if necessary
for the passage of persons or teams, and that any person in charge of a ves-
sel navigating the river who should attempt to pass any bridge, or approach
so near as to occasion damage thereto, while the draw was so closed, should be
subject to a penalty prescribed. Held, that the legislature had power to author-
ize the common council to regulate the passage of vessels through the bridges,
aud that the ordinance in question was a reasonable exercise of that authority,
and therefore valid. lb.

36. Tid0-water — navigable stream. Information to restrain the defendant
from rebuilding a dam across a river alleged to be within tide-water. The
water, at the place, rose and fell two feet with the flow and ebb of the tide, the
fluctuation being caused by the meeting of the sea water with the river water.
The river was only navigated with pleasure boats. Held, (1) that defendant's
dam was within tide- water, and (2) that the river was navigable water. 1871.
Attamey-Qeneral v. Woods (108 Mass. 436), XI, 380.

See FisHWAT.
WAY — See Highway.


A State statute giving a remedy for claims for wharfage by proceedings in
r«m, is void. 1871. Sroc^ibman v. J9rainm»U (48 N. Y. 554), lU, 78L

See Carriers.
WIFE— See Husband akd Wife.


1. Testamentary capacity. Partial unsoundness of mmd not affecting the
general faculties, and not operating on the mind of a testator, in regard to
testamentary disposition, is not sufficient to render a person incapable of dis-
posing of his property by will. 1871. Pideoek v. Potter (68 Penn. St 843),
VIII, 181, and 7u^, 184.

2. Insane delusion avoids wUL A will which is the direct ofibpring of even
partial insanity is void. 1871. Cotton et at. v. JJlmer (45 Ala. 878), VI, 703.

3. In the contest of a will the judge charged, that " unless the jury

believed from the evidence that the testator, if of sound mind, would have
included C. or his children in the benefit of his will, they cannot set the will
aside because he may have excluded them under an insane delusion as to C."
Hdd error, on the ground that when a will is ascertained to be the result of an
insane delusion it should be declared void, without inquiring what the testator
9<rould or would not have done if he had been of sound mind. lb

Digitized by


WILL. 36?

4. An Instrammit in the fomn of a deed, which oonTe]r> all the property
that the maker " may die possessed of/' is a will, and is onlj admissible in evi*
dence after dae probate. 1870. Brewer v. Baxier (41 Ga. 212), V, 680.

6. A writing, ezeouted by two persons, purporting to be a will, whereby
in consideration of mutaal friendship, they mutaally promise that, in the event
of the death of either, the sarrivor shall pay the expenses of siclLness and
burial, and shall enter into the poilsession of the estate of the other, is not a
compact, but a will, revocable by either, and is rendered inoperative by a sub-
sequent separate will of either. 1870. Schumaker v. Schmidt (44 Ala. 454),
IV, 135.

6. A husband and wi£B each had a will drawn in fiivor of the other. After
the husband*8 death it was found that each, by mistake, had signed the will of
the other, to remedy which error the legislature passed a special act, authoriz-
ing the court to reform the will in case the mistake was proved. ITdd, that
there was, in law, no will ; that, at the deatb of the husband, his estate vested
in his heirs ; and that the subsequent legislation was invalid, the effect of it
being to divest estates. 1871. AUer^s Appeal (07 Penn. St. 841), V, 488.

7. A and B mutually agreed by parol to make wills of their real and per
sonal estate, each in favor of the other, and the wills were so made ; but B
afterward made another will in favor of other parties, and died. HMt that
the agreement was a contract for the sale of lands within the statute of frauds
and was void. 1869. Oould v. MansfiM (103 Maes. 408), IV, 578.

8. Where a second will ia found to be invalid, with the exception of the
clause of revocation, on the ground of undue influence, the clause of revoca-
tion alone is not sufficient evidence of the testator's intention to revoke a former
will. The presumption is that, if the second will is found to be invalid, the
testator intended that the first will should stand, rather than that he should
die hitestate. 1871. Rudy v. Ulrieh (69 Penn. St. 177), VIII, 238.

9. The burden is on the proponent of a will, not only to prove the due exe-
cution thereof, but also the testamentary cajiadty of the testator. 1870. WU-
liafM V. RoHruan (42 Vt. 658). 1, 859.

10. A wife ia not a competent witneM to a will containing a devise to her
husband. 1871. SuUivan v. Stdlimn (106 Mass. 474), VIII, 356.

11. By statute it was provided that " all beneficial devises made in any

will to a subscribing witness thereto shall be wholly void, unless there are three
other competent witnesses to the same.'' A wife was one of the three subscrib-
ing witnesses to a will containing a devise to her husband. It was contended
that the devise to her husband was a ' beneficial devise " to the wife, and, there-
fore, void, leaving her a competent attesting witness to the rest of the will.
Heldt that the contention could not be maintained, aud there not being the
required number of competent witnesses required by law, the will was invalid

12. Undue influence. Where a person standing in a relation of confidence*
to a testator who was old and in extremist prepared a will In his own favor, and
procured a kinsman of his to witness the same, and caused the relatives and
friends ot the testator to leave the room while the will was read and executed,

Digitized by


368 WILL.

held, that the jarj had a right to infer, from these faetsand cireamstanoes,
fraud or undue influence, and that the onus was on the party propounding the
paper to prove that it expressed the true will of the testator. 1870. Har^e^
V. SuUens (46 Mo. 147), II, 491.

13. The unlawful cohabitation of a testator with the mother of an ille>

gitimate child, a legatee in the will, is not of itself sufficient evidence to iostifjr
a jurj in finding undue influence on the part of the mother. 1871. Bvdjf r,
Ulrieh (69 Penn. St. 177). VUI, 288.

14. Conditions. A condition in a will excluding from a share in the estate
any heir of testator who " goes to law to break his will " is valid, both as to
real and personal property. 1869. Bradford v. Bradford (19 Ohio St. 546),

16. Upon a breach of such a condition the legacy forfeited will pass to

the general residuary legatee. 76.

16. The heir is always to be £sTored at law, and not to be excluded on mere
conjecture. On the contrary, there must be satisfactory evidence of an inten-
tion to give a beneficiary interest to the devisee. 1869. Baylor v. PUune (81
Md. 158), 1.84.

17. Words of surviTorship in a will should be referred to the period for
the payment or distribution of the subject-matter of the gift. 1869. Sinion
V. Boyd (19 Ohio St. 80). II, 869.

18. A testator gave all his estate to his wife for life, with a direction

that after her death it should be equally divided among his children or the
survivors of them. One of the children died after the testator's death, but before
that of the widow, leaving a child. HM, that no interest vested in the deceased
child under the will, nor in the grandchild, she being neither one of the " chil>
dren " nor *' survivors." lb.

19. Where a gift is to take effect in possession immediately up<m the

death of the testator, words of survivorship refer to that time. 1869. Bran-
son V. mu (81 Md. 181), I. 40.

20. Where the gift is not immediate, there being a prior life carried

out, but words of perpetuity qualify those of survivorsliip, the survivor will
not take the whole gift to the exclusion of the heirs or representatives of his
co-legatee, lb.

21. Power of ejLeontors to sell land. Where no express power is given to
executors to sell lands, a power will not be implied from the mere charge of
debts upon the lands. 1878. WiU of Fox (52 N. Y. 530), XI, 751.

22. Sale of lands to pay testator's debts. Where, by statute, a sale of the
lands of a testator for the payment of debts is authorized : *' 1. When the will
gives no power to sell the same for that purpose, and the personal estate is
insufficient therefor ; " and ** 2. When a sale of the lands is more beneficial
than a sale of slaves, and is not in conflict with the provisions of the will," and
the second ground for sale is relied upon, the jurisdiction of the court to order
a sale is limited to a case in which there are no conflicting provisions in the
will. 1871. Mosely v. TuthiU (45 Ala. 621), VI, 710.

Digitized by


WILL. 369

23. <* Dyitfg without inrae." A will contained a proviflion bj which certain
leasehold property was devised to S., and in the event of her death, " without
leaving lawful issue or descendants." to W. Held, that the limitation over to
W. was not void for remoteness ; and that the words '* dying without issue/'
in devises of estates less than freehold, signify '* a dying without issue living
at the death of the first taker." 1870. AUender'M Leuee v. 8uuan (88 Md. 11),
III, 171.

24. Merger — Tested remainder — infimt in ventre s« mere — wazranty. A
testatrix devised real estate to her daughter and sole h^ir S. for life ; but " if
the said S. shall have a child to cry," then to said child ; and if said child
should die, then over. 6. and her husband conveyed the estate with warranty
to P., and four months after S. had a child W. bom alive. W. recovered judg>
ment in an action of ejectment against the grantee of P. In an action by the
grantee of P. against P. on the covenant of warranty, TuM, (1) that the life
estate of 8. under the will was not merged by the descent of the fee ; (2) that
the remainder in fee was vested in W., he being in ventre ea mere at the time
of the conveyance from S. ; (8) that W. was not barred by the warranty of his
parents. 1872. CVn/IeM v. iSi^orr (86 Md. 129), XI, 480.

26. Devise to the United States. Under a statute providing that lands may
be devised " to every person capable^ by law of holding real estate, but no
devise to a corporation shall be valid unless such corporation be expressly
authorised by its charter or by statute to take by devise," held, that a devise
to the government of the United States was void. 1 878. WiU of Fox (52 N.T.
580), XI, 751.

26. Speoifik) dtfirise. A testator, after devising all his real estate to his
widow for life, devised a specific parcel thereof to B and the " balance " thereof
to C. HM, that the devise to C was specific and not residuary, and that C
was entitled to contribution from the other devisee for a portion of the land
devised to him taken to pay debts of the testator and the dower of the widow,
who elected not to take under the will. 1872. Hendereon v. Oreen (84 Iowa,
487), XI. 149.

27. Bequest to trustee A will containd bequests to certain legatees, after
which this clause followed : " I hereby appoint N. trustee, to take and keep
the above legacies, the income of which he shall appropriate to their comfort
so long as they live. After their decease, what remains I bequeath to the
above trustee." HM, that the remainder to N. was conditional on his accept-
ing the trust 1870. Kirkland v. Narramore (105 Mass. 81), VTI, 497.

28. Deyise — estate for life with alternative limitation over. A tesUtor
gave to his wife and daughter, or in case of the death of one of them, to the
survivor, all his real estate during their lives, and in case of the death of the
daughter, leaving lawful Issue, his real estate was to descend to such lawful
issue, their heirs and assigns forever. The will further proceeded : " In case
my daughter shall die before her mother, leaving lawful issue, such issue shall
enjoy and inherit their mother's right from the time of her death : but in case
my daughter shall die, not leaving lawful issue, the executors shall sell, after
the death of my wife, the real estate, and distribute the proceeds among my


Digitized by


370 WILL.

relatives hereinafter named." Beld, that the daughter did not take &. n " estate
tail " which could be barred bj conveyance in fee ; bat that she took an estate
for life, with remainder to her children in fee, with an alternative limitatioD
over, in the event of her dying without iBsue living at her death. 1870. Tajflor
V. laylor (63 Penn. St. 481), UI, 565.

29. Whan beqiMStToid for ▼agoeneM—ezAoiitioiioyprM. Thereaidaarj
clause in a will waa as follows : " Item. I give and bequeath the residue of
my estate, after the foregoing bequests have been fully paid, to the orthodox
protestant clergymen of Delphi, and their successors, to be expended in the
education of colored children, both male and female, in such way and manner
as they may deem best, of which a majority of them shall determine.*' In a
suit by the heirs at law against the executors, to recover the residuary estate :
Held, (1) that the residuary clause was void for vagueness and uncertainty in
the designation of the trustees and of the beneficiaries of the use ; and (2) that
a court of equity had not the power to decree ito execution ey pres. 1871.
Gnmeif Bkecuton v. Harmon (85 Ind. 198), IX, 690.

3a I>evis« to oocporation thsreaft«r to be oceatad— *<Iiifid«l sooisiy."
By a will certain property was devised toC. and J. for life, and after their death
to the " Infidel Society in Philadelphia hereafter to be incorporated, and to be
held and disposed of by them for the putpose of building a hall for free dis-
cussion of religion, politics," etc. HM^ (1) that this remainder, limited to a
corporation thereafter to be created, was void, because there was no devisee
competent to take at the time, and the possibility that there might be such a
corporation during the particular estate for life was too remote ; (2) that it wais
not valid as a charitable use which could be enforced and fdministered in a
court of equity. It seems that such a corporation could* not be formed under
the law of Pennsylvania providing for the incorporation of societies for literary,
charitable or religious purposes, and beneficial associations. 1870. Zeisweim
V. Jnmee (68 Penn. St. 465), III, 558.

31. Bequest limited to tise of oorporation to be oreated. The testator, by
a claune in his will, gave the residue of his personal estate to certain trustees
named, and directed that it should be applied to support a hospital which was
to be under such trustees' management. He also directed the trustees to apply
to the legislature for an act to incorporate the hospital, and if the legislature
should not, within two years after his death (provided the youngest trustee
living at testator's decease, and testator's nephew, who was also named in the
will, or either should so long live),' grant a proper act of incorporation, the
bequest was to be paid to the United States. Held, that the reasonable inter,
pretation of the will is that the testator intended to limit a contingent future
interest in the nature of an executory devise, the contingency depending upon
the creation of a corporation by the legislature taking within Xhfi period allowed
for the suspension of the ownership of property by the statute against per«
petuities. 1870. BwrriU v. Boardman (48 N. T. 254), HI. 694.

32. An executory bequest limited to the use of a corporation to be ercmted

within the period allowed for the vesting of future estates and interssta is
vaUd. lb.

Digitized by



33. ^-^ 8ach a beqaest does not violate the statute of wills which prohibits
deTisee to a corporation not expressly authorized to take hj will lb.

34. Similarity in names. A testator bequeathed $20,000 to the " Society for
the relief of Indigent Aged Females." The plaintiff, '* St. Lake's Home for
Indigent Christian Females/' and the defendant, " An Association for the Relief
of Respectable Aged Indigent Females in the city of New York/' each claimed
to be the legatee intended. Held^ that the defendant's name answering more
cloeely to that in the will it was entitled to the bequest. 1878. St, LuM»
Home V. An AMOciaHon, ete, (5d N. Y. 191), XI, 697.

36. Adamption — parol «vid«no6. A husband died leaving an unsatisfied
ante nuptial contract in favor of his wife, and a will declaring it to be his wish
that his executors should " see that his contracts are fulfilled, and that his wife
have a dowry " of a specified amount. The wife filed a bill in chancery to
recover upon the marriage contract ; also a petition in the probate court to
recover the legacy. Held, (1) that the court of chancery had jurisdiction to
enjoin her from the further prosecution of the suit in the probate court ; and
(2) that parol evidence of the situation of the testator, the condition, character,
etc., of his property, was admissible to ascertain his intention to adeem, the
will not being explicit on this point, and, if such intention should be established,
to ascertain whether the legacy should be taken as a satisfaction In full or
pro tanto. 1870. OiUiam v. Chancellor <t Murray (48 Miss. 487), V, 498.

Online LibraryIrving Browne Isaac Grant ThompsonThe American reports: containing all decisions of general ..., Volumes 1-12 → online text (page 47 of 51)