for a load of rye, nothing being said,
in the order, as to the price, and B.
having no authority to make a con-
tract. The plaintiff informed B.
that his price, for the rye, was sev-
enty-five cents per bushel, and that
he would let the defendants have it
at that price; and he directed B. to
inform the defendants what the price
was. This B. omitted to do, but
took away a load of rye, and on re-
turning for another load falsely
stated to the plaintiff that he had
told defendants the price, and they
did not object to it; whereupon he
obtained another load. The market
price for rye, at that time, was only
fifty cents per bushel. Held that
the plaintiff was entitled to recover
the sum named by him to B. as
his price, for the grain. Booth v.
Bierce,
114

4 Where C., being the owner of brick,
intrusted them to O., a common car-
rier, for transportation by water,
who sold the same to L., a bona fide
purchaser, without notice of the
rights of C., there being nothing in
the case from which to infer a power
of sale in O., in addition to his pos-
session, except the fact that he was
sometimes engaged in buying and
selling brick on his own account, in
connection with freighting, and that
L. had frequently bought of him
without making inquiries; Held that
L. was not divested of his title. ib

5. It has never been held that the mere
giving of possession of goods to one
whose general and acknowledged
business is not that of a sale of such

goods, although he may incidentally
be concerned in the purchase and
sale of such goods, transfers to him
the external indicia of the right of
disposition. Per BARNARD, J. ib

2. Of real estate.

6. Where the contract of sale expressly
provides that all payments shall be
made previously to the execution of
the deed, it is not necessary for the
vendor to convey, or offer to convey,
before bringing suit. Adams v. Wad-
hams,
225

7.

The vendor of lands may bring a
suit in equity to obtain a specific
performance of the contract of pur-
chase, although he has an adequate
remedy by suit at common law to
recover the contract price, in dam-
ages. Schroeppel v. Hopper, 425

8. Although the administratrix of a
vendor has no concern with the real
estate of the intestate, still she is
competent to adjust and recover the
balance due upon a contract of sale
made by him in his lifetime. And
where, upon such an adjustment,
she agreed with the vendee, in writ-
ing, to procure the title, give further
time, and take his mortgage for a
portion of the unpaid purchase
money, and afterwards procured and
tendered to him a deed conveying
the title, and demanded perform-
ance; Held that on his refusal to
take the conveyance and execute
the mortgage, she might maintain
an action in equity to compel pay-
ment of the balance of the purchase
price.

ib

12. Where one has entered into pos-
session of land under a parol con-
tract for the purchase and convey-
ance thereof, and has remained in
possession ever since, and has fully
performed the agreement on his
part, by paying the stipulated price,
he will be regarded as the owner of
the land; and on a bill filed for that
purpose would be entitled to a de-
cree for a specific performance and
for the execution and delivery of a
deed from the vendor, if living, or
his heirs or devisees, if he be dead.
Traphagen v. Traphagen,
537

chamber thereof, for her sole and
individual purpose; but nothing
herein contained shall be construed
to prevent the said J. M. from sell-
ing the said house and lot and giv-
ing full possession thereof whenever
his and his daughter's interest may
be promoted thereby." Held that
the testator did not intend to confer
upon J. M. the power to sell in fee,
but only to limit E. H.'s right to the
possession of the east chamber, in
the event of J. M.'s selling or leasing
his life estate. Carter v. Hunt, 89

2. And that S. took a vested remain-
der in fee, which, upon her dying
intestate, descended to her only
child and heir at law, and upon the
death of J. M., the tenant for life,
such remainder became a fee simple
absolute.
ib

3. A testator directed his executors
"to invest the funds arising from
said estate, in some safe paying
stocks, as fast as they accumulate,
and to hold the whole of the property
and estate hereby devised and be-
queathed for said school and in their
hands, until the proper steps have
been taken by congress, or by the
legislature of Virginia, or the said
Hebrew Benevolent congregations,
to receive the same, and discharge
said executors." Held that the ac-
cumulation of the funds or income,
authorized by this provision of the
will, was void. Levy v. Levy,

585

See CONSTITUTIONAL LAW.

WILL.

1. A testator, by the 4th clause of his
will, devised as follows: "I give and
devise to my son-in-law J. M. the
house and lot I now occupy, &c. to
be used and enjoyed by him during
the term of his natural life, and from
and immediately after his decease I
give and devise the same to S. the
daughter of said J. M., her heirs and
assigns forever. It is my wish,
however, that so long as the house
shall remain in the actual occupation
of said J. M., and his sister E. H.
shall remain a widow, and otherwise
unprovided for, the said E. H. shall
have the free and full use of the east

personal estate to be sold, immedi-
ately after his death, by his executor,
and the proceeds to be disposed of
thus: $25 to be paid to S. Stacey,
the heir of the testator's deceased
daughter, Hannah, and the remain-
der to be divided equally between
his living children, Frederick, Char-
ity, Sally, Laurilla, Rhoda, Rhua,
and the heirs of Rebecca and Maria,
deceased children; making eight
shares; Rhua to take immediate-
ly and absolutely; the first five
named to have only the use or in-
terest of their respective shares
during life, and on the death of
either of them, his or her share to go
to his or her "heirs," if any living;
otherwise to the testator's children
then living, but the said first five
surviving to have only the use dur-
ing life. If there were no "heirs"

of Rebecca or Maria surviving the
testator, their share to go to the
testator's surviving children; the
said first five to have only the use
during life. As to his real estate,
the testator devised to his daughter
Rhua the use of the home farm and
wood lot for the term of three years
from his death, and twenty-five
acres in fee, off of the south end of
the farm, including buildings, to be
set off to her at the expiration of said
term, as her share. A power in
trust was given to the executor to
sell and convey the remainder of
the farm and wood lot to Rhua and
her husband, at the price of $50 an
acre if they consented. The sum
resulting from the sale to be divided
into seven equal shares. One-fifth
of each share to be paid annually,
till paid in full. In case of default,
further time to be allowed for pay-
ment, hot exceeding ten years from
the date of the sale, but interest to
be paid annually, after five years.
The use or interest of one of said
shares to be paid annually to each
of said five children first named,
during life, and on the death of
either of them, his or her share to
be paid to his or her "heirs," if
any living; if not, the use of it to
the testator's children then sur-
viving. One of said shares to be
paid directly to the heirs of each
of his daughters, Rebecca and Ma-
ria, if any living; if not, such share
to go to the testator's surviving chil-
dren;
Rhua to take her share di-
rectly, and the others to have the
use, only, during life. He then de-
vised to Laurilla, for life, remainder
to her heirs, four acres, occupied by
her, as part payment of her share of
the real estate, at the price of $50
an acre, if she elected so to accept
it. In case of her leaving no "heirs,'
the four acres to be sold for the use
of the testator's children; the avails
of the sale to be kept and disposed
of, for their use, as before directed
in respect to the avails of the sale
of the other portions of the real
estate. The executor was directed
to perform all the requirements and
conditions of the will as to the sale
of both personal and real estate,
and to convey the same by deed,
&c. Held 1. That as to the seven
shares of the testator's personal
estate remaining after the payment
of Rhua's share, nothing was given,
or intended to be given, by the will,

to the five living children named, or
any of them, except interest, or use,
for life. That this brought the dis-
position of the personal property
directly within the prohibition of
the statute in regard to the suspen-
sion of the absolute ownership of
personal property for the period of
more than two lives in being at the
death of a testator. 2. That the
grandchildren living at the death
of the testator did not take a vested
interest in the share of their parents,
subject to open and let in after-born
children. That their interests were
contingent, and depended entirely
upon the event of their surviving
their parents. 3. That each share
of the personal estate being liable to
an unlawful suspension of absolute
ownership, the disposition of at
least five of the seven, by the will,
was void. 4. That the executor
took no title to any portion of the
real estate; it not being given to
him in terms. 5. That the heirs at
law took all the real estate not de-
vised absolutely, by the will, sub-
ject to the execution of the trust
as a power, if valid, and subject
also to the estate for years therein
given to Rhua. 6. That the abso-
lute power of alienation of the title,
of the real estate, was not sus-
pended, by the will. That although
the power of the executor to con-
vey was suspended for the term of
three years, in the meantime the
remainder, subject to the execution
of the power, remained perfectly
vested in the heirs at law. 7. That
as to the real estate not devised, and
in reference to which, only a power
in trust to sell was given to the ex-
ecutor, the only object of the power
being to establish a void trust with
the proceeds of the sale, such power
was void, and the estate vested in
the heirs at law, absolutely. 8. That
the two shares, from the proceeds
of the personal estate which were
to be paid to the heirs of Rebecca
and Maria, were valid bequests; if
such heirs were living at the death
of the testator. But that the other
two shares, given to them, from the
proceeds of the sale of the real estate,
failed with the failure of the power
of sale; and those grandchildren
must take, if at all, as heirs at law
of the testator. Persons v. Snook, 144

5. Decree declaring all the provisions

of the will void, except the devises

6. A testatrix, by her will, devised as
follows: "Fourth. I give, bequeath
and devise to my son W. W. B., in
case he lives until he arrives at the
age of twenty-one years, the re-
mainder of all my property, both
real and personal. Fifth. In case
my son W. W. B. dies under the age
of twenty-one years, or during his
non-age, then and in that case I
further give and bequeath to my
husband W. H. B., during the term
of his natural life, the use and en-
joyment of all the property, both
real and personal, to which my son
W. W. B. would be entitled, under
this will, in case he should live until
he arrives at the age of twenty-one
years, and in case W. H. B. sur-
vives W. W. B. Sixth. In case
my son W. W. B. shall die under
the age of twenty-one years, and
W. H. B. shall survive him, then
from and after the decease of W. H.
B. I give and devise the property,
both real and personal, to which
W. W. B. if he lives until he arrives
at the age of twenty-one years will
be entitled, under the provisions of
this will, to the children of E. W.,
R. J. &c. Seventh. I hereby give
and bequeath to W. H. B. the en-
tire management and control of the
property, both real and personal,
to which my son shall, by the pro-
visions of this will, be entitled when
he arrives at the age of twenty-one
years, for the support, education
and necessary use of W. B. B. while
he is under the age of twenty-one
years." And she appointed W. H. B.
testamentary guardian of W. W. B.
and sole executor of the will. W.
H. B. died, during the minority of
W. W. B. The latter then died, an
infant of the age of seven years,
leaving no children, parents, broth-
er, sister, grandparent or next of
kin, except J. B. his paternal grand-
father. Held, that by the 4th and
7th clauses of the will the residuary |

8. A testator, by his will, executed in
the city of New York, after giving
legacies and bequests to various per-
sons, devised and bequeathed his
farm at Monticello, in Virginia, to-
gether with all the rest and residue
of his estate, real, personal or mixed,
not thereby disposed of, wherever
or however situated, "to the people
of the United States or such persons
as congress shall appoint to receive
it," for the purpose of establishing
at said farm at Monticello, an agri-
cultural school; and should congress
refuse to accept of said bequest, or
refuse to take the necessary steps to
carry out the testator's intention,
he devised and bequeathed said
property "to the people of the
state of Virginia, instead of the peo-
ple of the United States;" provided
they should by acts of their legisla-
ture accept it, &c. And should the
people of Virginia, by the neglect
of their legislature, decline to ac-
cept the bequest, then the property
was devised and bequeathed to cer-
tain religious societies. Held 1. That
the devise and bequest in trust of
the Monticello farm and of all the
residue of the testator's estate, to
the people of the United States, did
not, and could not, take effect, and
was void. (MULLIN, J. dissented.)
2. That such devise to the people of
the United States should be consid-
ered as a devise to the government
of the United States. 3. That such
devise to the government of the
United States, if the government
could take under it, should be deem-
ed a present devise on condition that
congress shall take certain action.
4. That the subsequent devise and

bequest of the same property to the
people of the state of Virginia was
valid, and the government of Vir-
ginia had capacity to take as a body
politic, notwithstanding its political
condition or relation to the govern-
ment of the United States; and that
such devise must be deemed to have
taken effect on the death of the tes-
tator, subject, however, to be de-
feated by the want of subsequent
action by the legislature of Virginia.
5. That our statute prohibiting cor-
porations from taking by devise un-
less expressly authorized by their
charters, or by statute, was not in-
tended to apply either to the gen-
eral or the state governments, and
does not prevent the government of
the United States taking under the
devise. 6. That the government of
the United States is an artificial
being, or body politic, capable of
taking by grant or devise, for its
own benefit, or the benefit of the
people of the United States. 7. That
it might also take under a devise in
trust for a charity to be administer-
ed or carried on in the District of
Columbia, and that congress might
provide by law for the administer-
ing of such charity there.
that it could not take under a de-
vise in trust for a charity to be ad-
ministered or carried on in the state
of Virginia, either for its own bene-
fit, or for the benefit of the people
of the United States. 8. That the
government of the United States
could not accept the devise, and had
no power to act under it; and there-

But

fore that the devise to the govern
ment of the United States was void.
(MULLIN, J. dissented.) 9. That
such devises to the governments of
the United States and of Virginia
were not within the act of the legis-
lature, of April 13, 1860, which de-
clares that "no person having a
husband, wife, child or parent shall,
by his or her last will or testament,
devise or bequeath to any benevo-
lent, charitable, literary, scientific,
religious or missionary society, as-
sociation or corporation, in trust or
otherwise, more than one half part
of his or her estate, after," &c. Levy
v. Levy,
85