7. CONDUCT OF A TRUSTEE IN THE EXECUTION OF DISCRETIONARY POWERS Will
be examined by a court of equity, for the purpose of determining whether
he has abused his trust by acting beyond the limits of a sound and
honest execution of the trust; and the court will, in a clear case, remove
the trustee and assume the execution of the trust. Id.

See MORTGAGES, 1; PERPETUITIES, 1.

UNINCORPORATED SOCIETIES.

1. MUTUAL AID SOCIETY. -ACTION AT LAW WILL LIE against MutuAL AID
SOCIETY FOR FAILURE TO MAKE ASSESSMENT to pay benefits as stipulated
in the certificate of membership, upon a declaration alleging, with other
proper averments, a failure to make the assessment, and averring that if
such assessment had been duly made it would have resulted in the col-
lection of the maximum sum payable under the certificate, and claiming
that sum as damages for such failure, and the plaintiff would be entitled
to recover what, upon proof, he could show such assessment would have
yielded if it had been duly made. Earnshaw v. Sun Mut. A. Soc., 460.
2. CONTRACT LIMITATION.-WHERE CERTIFICATE OF MEMBERSHIP OF MUTUAL
AID SOCIETY PROVIDES that suit for the recovery of any claim under the
certificate must be commenced within six months after the death of the
assured, and that failure to commence such suit within the time specified
would be a waiver of all rights and claims under the certificate, and
within that time an injunction enjoining payment to the beneficiary
prevents him from bringing suit until after the expiration of the six
months, such contract bar is absolutely removed, and cannot be revived,
and suit may be brought at any time within the period prescribed by
statute. Id.

VENDOR AND VENDEE.

1. UNILATERAL CONTRACT IN WRITING SIMPLY GIVING OPTION to purchase
land within a specified time, for a given price, is binding upon the
party only who signs it, and is binding upon him only for the time
stipulated for the exercise of the option. Coleman v. Applegarth, 417.
2. DOCTRINE OF REASONABLE TIME APPLIES TO AN AGREEMENT AS TO THE
PROCEEDS OF A SALE OF LAND where no time is specified; and when it is
stated in such agreement that the land should be sold within the plain-
tiff's "lifetime," it should not be limited to a shorter time. Michael v.
Foil, 577.

3. ABSENCE OF WORDS OF INHERITANCE IN EXECUTORY CONTRACT TO CON-
VEY LAND WILL not Prevent Passing of Fee, but equity will supply
the words where the consideration paid or other circumstances evince
that no less than a fee was intended; although in a conveyance the word
"heirs" is a term of art, and indispensable to carry a fee. Phillips v.
Swank, 691.

4. CONSTRUCTION OF INFORMAL INSTRUMENT, TRANSFERRING INTEREST IN
REAL ESTATE, AS CONVEYANCE, OR AS EXECUTORY AGREEMENT TO
CONVEY ONLY, depends, not upon any particular words and phrases it
may contain, but upon the intention of the parties, derived from the in-
strument itself, and when that is doubtful, from the circumstances at-
tending its execution; and in determining this intention, the first rule is
to inquire whether the language imports a present conveyance, or con-
templates a further assurance to pass the title. Id.

5. INSTRUMENT IS TO BE CONSTRUED AS EXECUTORY AGREEMENT TO CONVEY,
where the owner of land dated and signed a writing, not under seal, to
the effect that "i do herby agree tht Jonathan Phillips shall have the
land wich he is posetion of now for labor he don for me over age and this
shall be his wrecept for all my writes and claims against the land.” Id.
6. WRITTEN CONTRACT TO CONVEY LAND, TO SATISFY STATUTE OF FRAUDS,
MUST BE IN SOME SENSE SUSTAINING; but it is sufficient if the land be
described as that which the vendee "is in possession of now." Id.
7. VENDOR'S INTEREST IN LANDS CONTRACTED TO BE SOLD IS BOUND BY
LIEN OF JUDGMENT recovered against him while the contract is unexe-
cuted, to the extent to which it is unexecuted. Kinports v. Boynton, 706.
8. ASSIGNMENT BY VENDOR OF LANDS IS IN LEGAL EFFECT MORTGAGE, leav-
ing in him a right of redemption, when it is of his claim for the unpaid
purchase-money of the lands contracted to be sold, "together with all
my interest and legal estate in the land," as collateral security merely. Id.
9. VENDOR'S RIGHT OF REDEMPTION IS BOUND BY LIEN OF JUDGMENT subse-
quently recovered against him, where he makes a contract to convey the
lands, and assigns his claim for the unpaid purchase-money, "together
with all my interest and legal estate in the land," as collateral security,
thus creating a mortgage. Id.

10. MERE RECOVERY OF JUDGMENT BY Vendor againsT VENDEE IN EJECT-
MENT TO ENFORCE CONTRACT FOR SALE OF LANDS DOES NOT RENDER
VENDEE'S POSSESSION THEREAFTER ADVERSE and hostile to the vendor,
so as to set in motion the statute of limitations, no proceedings having
been taken to enforce the judgment. Bennett v. Morrison, 711.

See SPECIFIC PERFORMANCE; STATUTE OF FRAUDS.

WAREHOUSEMEN.

BAILEE-DEGREE OF CARE. - WAREHOUSEMAN HOLDING GOODS OF ANOTHER
AT HIS REQUEST AND WITHOUT PROFIT is not, in case of imminent dan-
ger from fire to warehouse in which they are stored together with other
goods, bound to act upon the suggestion of the owner as to the best means
of saving the goods. If an honest and reasonable effort is made in good
faith by the warehouseman and his servants, suggested at the time as
the best line of action to be pursued, it exonerates him from liability
for loss, although it subsequently appears that a different course would
have been better. Turrentine v. Wilmington etc. R. R. Co., 602.

WARRANTY.
See SALES, 8, 9.

WATERS.

1. RULE FOR DISTRIBUTION OF ALLUVIAL ACCRETION FORMED ON LANDS BOR-
DERING ON UNNAVIGABLE RIVER, owned by coterminous proprietors, is
to extend the side lines of each owner to the nearest river bank, giving
to each that part of the accretion formed in front of his own land. Hub-
bard v. Manwell, 110.

2. NAVIGABLE WATERS. - Although rivers, lakes, etc., are not strictly public
waters, yet if they are navigable in fact the public have a right to their
use. Such waters are treated as publici juris in so far as they may be
properly used for the purposes of navigation in their natural state. State
v. Narrows I. Club, 618.

3. Owner of BED TO RIVER, ETC., NAVIGABLE IN FACT may use the land
and whatever is incident to it, including water over it, in any lawful
way, but may not in so doing impede or materially interfere with navi
gation. Id.

4. INDICTMENT FOR OBSTRUCTING NAVIGABLE WATERCOURSE must charge that
such obstruction was not "for the purpose of utilizing," etc., where
statute prohibits the willful obstructing such waters, "except for the
purpose of utilizing water as a motive power." But obstructing waters
navigable in fact is indictable at common law, however, under the com-
mon-law form. Id.

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5. EVIDENCE. IT IS NOT NECESSARY THAT OBSTRUCTIONS IN THE WAY OF
NAVIGATION SHOULD HAVE ACTUALLY INTERFERED WITH OR DONE IT
INJURY TO RENDER THEM A NUISANCE; it is sufficient if navigation
was thereby rendered less convenient, secure, and expeditious. So iron
posts set in bed of navigable river may obstruct navigation, although no
vessel has sustained actual injury therefrom; and evidence that some
particular vessel had suffered harm is not required. Id.

See EASEMENTS, 1, 2.

WAYS.

See INJUNCTIONS, 1.

WILLS.

1. SUBSCRIBING WITNESSES TO A WILL MUST SEE THE TESTATOR'S SIG-
NATURE at the time when they attest it. It is not sufficient for him
to send for the witnesses, explain that he wanted them to sign his will,
and obtain their signatures as attesting witnesses, if the will is so folded
that they cannot see whether he has signed it or not. In re Mackay, 409.
2. CONSTRUCTION. A devise to testator's wife "as long as she shall
remain unmarried and my widow, but on her decease or marriage, then
what may remain I give and devise to my son, C. H. In case my son,
C. H., should die without children, then, after my wife's death and my
son's death, to A. S., my brother's son," gives to C. H., on the testa-
tor's decease, a vested remainder in fee, limited upon the life estate of his
mother, subject to be defeated by his death without children, in which
event the remainder vests in the testator's nephew, A. S. Avery v.
Everett, 368.

8. GENERAL WORDS IN WILL, FOLLOWING after and COUPLED WITH WORDS
OF LIMITED SIGNIFICATION, are restricted to the same class of things as
the former, except where such general words are in a residuary clause.
The clause, "All my personal goods and chattels on said premises at the
time of my decease," will not therefore pass promissory notes and money
of the testatrix on the premises at the time of her decease, the clause
being preceded by the words, "with my household furniture," there
being also a residuary clause in the will, and the amount of money and
notes kept on the premises not being definite, but often varying with
varying circumstances. Peasley v. Fletcher, 103.

4. PAROL EVIDENCE ALIUNDE THE WILL is admissible for the purpose of
showing that certain of the testator's children, who did not receive any-
thing under the will, were intentionally omitted. Whittemore v. Rus-
sell, 200.

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5. CONSTRUCTION OF WILL-LIFE ESTATE- AUTHORITY TO SELL. A wife
takes only a life estate in the realty, with a gift over, under a clause of
a will which provides as follows: "I give to my wife the use and re-
mainder of my property, both real and personal, during her natural life-
time, and after her decease it is to be equally divided between my
children; the real estate to be sold, if thought advisable"; and the last
clause, providing for a sale of real estate, is not effective, no power of sale
having been conferred by the testator on the executor or any trustee, but
the land can be sold only by the persons to whom it belongs. Id.

6. WILL-WHETHER GIFT OF PERSONAL PROPERTY FOR A LIFETIME, WITH
A GIFT OVER, IS ABSOLUTE OR OTHERWISE depends upon the nature of
the property, as to its being perishable, or merely of articles which may
depreciate by using, and also upon other circumstances. Where the use
of money is given, the gift is of the interest only, and security must be
given, or a trustee appointed, of whom a bond would be required. All
rules may be changed, according to circumstances, as a court of equity
may deem proper. Id.

7. DEVISE TO Natural DaughTER OF TESTATOR, AND TO HER ILLEGITIMATE
CHILDREN by a deceased friend of the testator, is not illegal, nor is it
made so by any illicit intercourse between said daughter and one of the
testator's executors, when there is no proof to charge the testator with
knowledge of such intercourse, or to show that he in any way encour-
aged or promoted it, and where his will makes no provision for the car-
rying on of such intercourse, or for the maintenance of any offspring
that might result therefrom. Smith v. Du Bose, 260.

8. WILL CANNOT BE SET ASIDE FOR ALLEGED MISREPRESENTATIONS, unless
the representations are proved to have been false; and for the court to
so charge the jury is not error. But to charge in addition that the repre-
sentations must be proved to have been made in bad faith, and for the
purpose of procuring the will, is erroneous. Where, however, the issue
actually presented in the case was, whether or not the representations
were false, where other portions of the charge limited and explained
this instruction, where the court instructed the jury that if the repre-
sentations were false the will should be set aside and declared void, and
where the evidence in the case proved that the representations were not
false, the verdict will not be set aside on that account, it being altogether
probable that the jury could not have been misled or confused by the
use of the terms employed. Id.

9. WILL

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CONTINGENT LIMITATIONS — PARTITION. Where testatrix de-
vised land to certain of her children, with a provision that upon the death
of either without heirs the portion of the child so dying should go to the
survivor, the time when the contingency is to happen is the death of the
respective devisees without an heir, — that is, without children then liv-
ing, and no earlier period, and the estate should then go to the sur-
vivor; and where it was also provided that in case of the marriage of
either, then there should be a division of the estate, the postponed divis-
ion shows that it was not the intention of the testatrix to confine the
contingency to the period of her own life. Williams v. Lewis, 574.
10. WILLESTOPPEL BY PARTITION - CONTINGENT LIMITATIONS. - Where
land is devised to children of the testatrix to hold equally until certain
contingencies, upon the happening of which a division was to be had,
and also upon a contingent limitation that upon the death of one with-
out heirs that portion was to go to the survivor, a judgment of partition

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does not estop the survivor from claiming his share upon happening of
the contingent limitation. The partition separates into parts that which
was before held in common as a whole, and no more disturbs the limita-
tions than would have done a devise of the several portions to the respect-
ive tenants by the testatrix. Id.

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11. WILL. WHERE A TESTAMENTARY GIFT IS MADE BY HUSBAND TO WIFE
IN SATISFACTION OF HER WAIVER OF DOWER in his estate, the gift has a
preference over all other unpreferred legacies; but the general rule does
not prevail, if the will clearly disclose that the testator intended that
such gift should not have a preference over other bequests. Moore v.
Alden, 203.

12. ID. —WHERE SUCH GIFT WAS AN ANNUITY for life to the widow, uncondi
tional and absolute, but the testator had over-estimated the sources of
supply upon which its payment depended, the full annuity must be paid
ber as long as the estate lasts; the source indicated failing, others must
supply the deficiency. Id.

13. UPON BILL IN EQUITY FOR CONSTRUCTION OF WILL, ALLOWANCES FOR
THE EXPENSE OF PROFESSIONAL SERVICES AND DISBURSEMENTS may, to a
moderate amount, be thrown upon the estate, unless the case be frivo-
lous and unnecessary. Id.

14. WILL IS PRESUMED TO HAVE BEEN DESTROYED, WITH INTENT TO REVOKE
Ir, from proof that it cannot be found after testator's death. Collyer v.
Collyer, 405.

15. ONE WHO SEEKS TO ESTABLISH A LOST OR DESTROYED WILL ASSUMES
THE BURDEN of overcoming by adequate proof the presumption that it
has been destroyed, animo revocandi. Id.

16. PRESUMPTION THAT A WILL WHICH CANNOT BE FOUND WAS DESTROYED
ANIMO REVOCANDI IS NOT OVERCOME by proof that persons injuriously
affected by the will had opportunities to destroy it. The facts and cir-
cumstances must be sufficient to establish that the will was actually
fraudulently destroyed. Id.

17. COSTS AGAINST THE UNSUCCESSFUL PROPONENT OF A WILL may be awarded,
in the discretion of the surrogate, under the statutes of New York. Id.
See PERPETUITIES.

WITNESSES.

1. HUSBAND CONSENTS TO HIS WIFE'S BEING WITNESS when he offers in evi
dence a deed witnessed by her. Tillotson v. Prichard, 95.

2. PLAN OF LANDS, THOUGH IN PART COPY OF GOVERNMENT Survey, May
BE USED ON TRIAL by a surveyor testifying as a witness. id.

3. HUSBAND OR WIFE MAY, UNDER THE STATUTES OF WEST VIRGINIA, GIVE
EVIDENCE FOR OR AGAINST EACH OTHER in any civil action or proceed.
ing, except that neither may disclose any confidential communication
made to him or her during marriage. Pickens v. Knisely, 622.
4. PARTY CONSENTING THAT WITNESS TESTIFY TO CONFIDENTIAL AND PRIVI-
LEGED COMMUNICATIONS on direct and cross examination cannot there-
after have the evidence struck out on the ground that it related to a
confidential communication. Parkhurst v. Berdell, 384.

B. CONFIDENTIAL COMMUNICATIONS BETWEEN HUSBAND AND WIFE WHEN
ALONE, which the code of New York prohibits either from testifying to,
are such only as are of a confidential nature, and are induced by the
marital relation, and do not include ordinary conversations relating to
matters of business. Id.