USURY. UNDER THE GUISE OF LIQUIDATED DAMAGES.

Continued.

without violating the statute, as he supposed: Held, that the twenty
per cent expressed to be liquidated damages was not such in good
faith, but a mere device to cover up an usurious transaction. Pike v.
Crist et al. 461.

WHO MAY PLEAD USURY.

2. Where a purchaser of land from a mortgagor received a deed of
warranty which, after reciting that it was subject to certain mortgages,
contained this clause: "all three of which mortgages the above grantee
assumes and agrees to pay, except any usurious and illegal interest in
the same:" Held, that, as under this clause, the right of the mortgagor
to an abatement of the usury entered into the consideration of the pur-
chase as an element of the price, the grantee had the right to question
the validity of the mortgages in respect to usury. Ibid. 461.
INTEREST RECOVERABLE.

3. On an usurious contract. Where a part of the principal of notes
secured by mortgages was composed of usury, and an usurious rate of in-
terest was expressed on the face of the notes under the guise of liquidated
damages if not paid at maturity, the circuit court, after finding the sum
actually due after deducting the usury, allowed but six per cent inter-
est on that sum from the date of the notes, instead of the ten per cent,
on bill filed by the grantee of the mortgagor: Held, no error, as this
court has adopted six per cent as that which equity requires a party
seeking relief shall pay in such cases. Ibid. 461.

EXTENT OF RECOVERY AT LAW.

4. A judgment found upon a note which upon its face reserves an
usurious rate of interest should be for the principal alone. Hefner v.
Vandolah, 483.

VENDOR AND PURCHASER.

OF A NEW CONTRACT.

1. A seller makes an offer, and the purchaser accepts and pays the
price; but, before receiving deed, he takes back his money, and takes
under a contract to pay at a future day, and upon conditions: Held,
that he thereby waives any equitable rights growing out of the original
transaction. Oliver v. Board of Supervisors of Livingston Co. 528.
FORFEITURE-RE-SALE.

2. A contract in the usual form of a forfeit bond, in which condi-
tions precedent are imposed upon the purchaser, wherein time is of
the essence of the contract, and the right to declare a forfeiture is
reserved, upon non-performance by the purchaser, may be disregarded
and the property resold to another. Ibid. 528.

WHETHER A MORTGAGE.

3. Such contract has none of the elements of a mortgage, and the
delinquent can have no standing in a court of equity.

VENDOR AND PURCHASER. Continued.

FORFEITURE.

4. A right of forfeiture, although tolerated, is not favored in courts
of equity. Where the party seeking to enforce such right, by his con-
duct has misled others, and suffered them to acquire rights in ignorance
of his right to declare a forfeiture when called upon to disclose the true
state of the facts, a court of equity will not allow him to exact a
forfeiture. Fitzhugh et al. v. Smith, 486.

5. Thus, where a vendor had, in his contract for the sale of land,
reserved the right to declare a forfeiture for non-compliance with its
terms, and the contract was not recorded so as to afford notice of its
terms, and when made a party defendant in a judicial proceeding
against his vendee to establish and enfore a lien, and subject the inter-
est of the vendee to sale, and failed to answer and disclose the terms of
the contract and his right to insist on a forfeiture, or even to give
notice thereof, but suffered the creditors to proceed to decree, and to
advertise the sale of the premises, and then notified them of his inten-
tion to declare a forfeiture only three days before the sale, it was held
that by his conduct he had waived his right to declare a forfeiture as
against the rights of such creditors. Ibid. 486.

ESTOPPEL.

6. Vendor estopped to defeat the title of his second grantee. Where a party
made a conveyance of a tract of land to B, and received the purchase
money, and afterward brought suit by attachment againt A, a former
grantee of the plaintiff, whose deed was unrecorded, to recover a sum
due from him, and attached the same land, and B interpleaded, claim-
ing title: Held, that on the trial of the issue on the interpleader the
plaintiff was estopped from defeating the title of B, even by showing
that the latter had notice at the time of his purchase of the prior un-
recorded deed. Needham v. Clary, 344.

WHETHER THE RELATION EXISTS. See FORCIBLE ENTRY
AND DETAINER, 1.

SPECIFIC PERFORMANCE.

By vendee against vendor. See CHANCERY, 15 to 19.

VERDICT.

JURY SEALING VERDICT AND DISPERSING.

1. Effect of the irregularity. The court, when about to adjourn for the
day, in the absence of defendant's counsel, directed the sheriff to allow
the jury upon agreement to seal up their verdict and disperse, with in-
struction to meet the court in the morning, which was done. In the
morning the jury met the court and delivered their verdict, the defend-
ant's counsel being present. The court refused to set aside the verdict
for the cause stated: Held, that, as it does not appear that defendant was

VERDICT.

JURY SEALING VERDICT AND DISPERSING.

Continued.

in any manner prejudiced, the irregularity was no ground for setting
aside the verdict. Mains v. Cosner, 465.

MODE OF ARRIVING AT A VERDICT BY THE JURY. See RIGHTS OF
WAY, 15, 16, 17.

WAR.

EFFECT OF A STATE OF WAR ON ACCRUING INTEREST. See PROMIS-
SORY NOTE, 3.

WARRANTY.

MARINE INSURANCE.

Implied warranty as to sea-worthiness. See INSURANCE, 1, 2, 3.

WILLS.

TESTAMENTARY CAPACITY.

1. Of the rule or test in respect thereto. From the fact that a man
might not be competent to make a will of one kind, and under some
circumstances, owing to the nature and extent of the estate, the number
of objects and the character of the disposition, when under other and
different circumstances requiring less mental effort, he might be, the
court appreciates the difficulty in attempting to lay down any definite
rule in respect to the exact amount of mental capacity requisite to the
making of a valid will. Trish et al. v. Newell et al. 196.

2. The best form in which to submit the question to a jury, is,
whether the mind and memory of the testator was sufficiently sound to
enable him to know and understand the business in which he was en-
gaged at the time he executed the will, judging his competency of mind
by the nature of the act to be done, from a consideration of all the cir-
cumstances of the case. Ibid. 196.

3. To be of sound and disposing mind and memory, a person should
be capable of making his will with an understanding of the nature of
the business in which he is engaged; a recollection of the property he
means to dispose of; of the persons who are the objects of his bounty,
and the manner in which it is to be distributed between them. It is not
necessary that he should comprehend the provisions of his will in their
legal form. It is sufficient if he understands the elements of which it
is composed—the disposition of his property in its simple forms. Ibid.
196.

4. Upon the question of testamentary capacity, the court charged
the jury that they must be satisfied, from the evidence, that the testator
"had sufficient strength of mind and memory to take into account and
retain in his mind, without dictation from others, the nature and objects
of his bounty, the nature and character of his property, and the man-
ner in which he was disposing of it; the person who was the natural

WILLS. TESTAMENTARY CAPACITY. Continued.

object of his bounty, and her claims upon him; the relation which he
sustained toward them, who, by the will, were made the recipients of
his bounty; and his mind should be sufficient to enable him to have a
comprehension that he was disposing of his property by will, and to
know how it was being disposed of by said will." Held, that the
charge was erroneous. Trish et al. v. Newell et al. 196.

5. The court further instructed, "that in order to have sufficient
capacity to make a valid will, the testator must have something more
than mere passive memory; he must retain sufficient active memory to
collect in his mind, without prompting, the particulars or elements of
business to be transacted, and to hold them in his mind a sufficient
length of time to perceive at least their more obvious relations to each
other, and be able to form some rational judgment in regard to them :"
Held, objectionable, as requiring a capacity not possessed by a great
portion of mankind, even without the impairing effect of disease. Ibid.

186.

MONEY-WHEN TREATED AS REALTY.

6. Even a direction in a will to sell land for a particular purpose
does not indicate an intention to convert real into personal estate to all
intents, so that the surplus of the proceeds will pass under a residuary
bequest of personalty. Every conversion, however absolute, will be
deemed a conversion for the purpose of the will only, unless the testa-
tor distinctly indicates a different intention. Richards v. Miller, 417.

7. Where a will, by its terms, gave no direction for the sale of real
estate, and created no charge upon the land for the payment of lega-
cies, but, after directing the payment of debts and personal expenses,
contained this clause: "I give, devise, etc., the remainder of my es-
tate:" Held, that if the right to sell real estate embraced in the re-
siduary devise to pay legacies were conceded, the legacies would be a
charge by implication only, resulting from a deficiency of personal
assets; and the right to sell would be limited to the necessity, and the
surplus of the proceeds, after satisfying the debts and legacies, would
retain the character of real estate. Ibid. 417.

8. In such case, if the county court should direct the sale of the
whole of the real estate for the payment of debts and legacies, it will
be presumed that the whole was ordered to be sold because not suscep-
tible of division without injury to the estate; and such sale will not
convert the surplus proceeds into personal estate, but it will be treated
in the final distribution as realty. Ibid. 417.

9. Who will take thereunder. The rule rigidly adhered to by the courts is,
that the words employed by a testator in his will, will be presumed to
have been used in their strict and primary sense, unless the context
shows them to have been used in a different sense. When not thus ex-

WILLS. DEVISE TO HEIRS-AT-LAW." Continued.

plained, their legal and technical meaning will be enforced. Thus, the word heirs, unexplained by the context, will be held to mean the persons appointed by law to succeed to the estate in case of intestacy. Richards v. Miller, 417.

10. An heir is one who inherits or takes from another by descent, as distinguished from a devisee, who takes by will. He is one upon whom the law casts the estate immediately upon the death of the owner. When property is devised to the testator's heirs-at-law, without other designation, it passes as in case of intestacy. Ibid. 417.

11. When gifts by will to heirs-at-law are made to them simplicitur, the persons to take and the proportions must be determined by the statute of descents and distribution. So, where a testatrix, after directing the payment of her funeral expenses and debts, and certain pecuniary legacies, provided in her will as follows: "I give, devise, and bequeath to my heirs-at-law the remainder of my estate," and she died, leaving a husband, and brothers, sisters, and descendants of brothers and sisters, but no children, father, or mother: Held, that her husband, being an heir-at-law, was entitled to one-half of the real estate left by the testatrix, under such clause, or the surplus of the proceeds of its sale to pay debts and legacies which was held to be realty under the will; and this, notwithstanding a prior specific bequest to him. Ibid. 417.

12. This case is distinguished from Pitney v. Brown, 44 Ill. 363. In that case the fund was directed to be "equally divided " between A and the heirs of B, and the court there held that A and each of the heirs of B took per capita, and not per stirpes. In that case the gift was not to a class, as in this, to be ascertained by reference to the statute, but to certain individuals, as if personally named. When the words "equally," "share and share alike," or "to be equally divided" are used in a will, they mean a division per capita. Ibid. 417.

13. Parol evidence to explain who meant by "heirs-at-law." Where a residuary devise in a will was in the words: "I give, devise, and bequeath to my heirs-at-law the remainder of my estate:" Held, that parol evidence of the instructions given by the testatrix to the scrivener who drafted the will, for the purpose of explaining who she meant by the words heirs-at-law, was not admissible. Ibid. 417.

14. Parol evidence to identify heirs, etc. But proof of the amount and nature of the fund to be distributed, to show whether personalty or realty, and the names of the persons who sustained such relations to the testatrix as would constitute them heirs-at-law, is not only proper, but necessary to an order of distribution. But such proof does not raise a latent ambiguity to justify proof of the declarations of the testatrix, made at the writing of the will, to show who she considered her heirs. Ibid. 417.