case the will had not been proved, he will be entitled to so much of such share as does not exceed the value of the devise or bequest made to him in the will. N. Y. R. S. (8th ed.), p. 2549, §§ 50, 51 (2 R. S. 63.)

§ 24. The following are the statutes now in force in New York as to the rights and powers of foreign corporations to deal with real property in this State. "Any foreign corporation created under the laws of the United States, or of any State or Territory thereof, and doing business in this State, may acquire such real property in this State as may be necessary for its corporate purposes in the transaction of its business in this State, and convey the same by deed or otherwise in the same manner as a domestic corporation."

"Any foreign corporation may purchase at a sale upon the foreclosure of any mortgage held by it, or upon any judgment or decree for debts due it, or upon any settlement to secure such debts, such real property within this State covered by or subject to such mortgage, judgment, decree or settlement, and hold the same for not exceeding five years from the date of such purchase, and convey it by deed or otherwise, in the same manner as a domestic corporation." L. 1892, ch. 687, §§ 17,

18.

A foreign corporation incorporated for the purpose of carrying on the business of purchasing and selling real property, which has filed the necessary papers and procured the certificate of the Secretary of State as required by sections 15 and 16 of the above cited statute, can come into this State and transact here that kind of corporate business. Lancaster v. The Amsterdam Improvement Co., 140 N. Y. 576.

In this State, a person having a husband, wife, child or parent living, is not permitted to give more than one-half of his estate after the payment of his debts to any benevolent, charitable, literary, scientific, religious or missionary society, association or corporation. L. 1860, ch. 360. And several special acts providing for forming such corporations restrict the amount which they can take by will to one-quarter of the testator's estate after the payment of his debts, and require that the will shall be made at least two months before the testator's death. L. 1848, ch. 319, § 6; L. 1865, ch. 368, § 6; L. 1875, ch. 343, § 5; L. 1886, ch. 236, §7; L. 1887, ch. 315, § 5.

If an attempt be made to give to a number of such companies more than is thus permitted, the portion of the estate permitted by the statute is distributed pro rata amongst them. Hollis v. Drew Theological Seminary, 95 N. Y. 166.

In so far as they relate to personalty, these statutes regulating gifts to charitable organizations apply only to wills executed by persons domiciled in New York, the provisions of which wills are to be executed within this State. Dammert et al. v. Osborn et al., 140 N. Y. 30, 40.

§ 34. Aliens may now take real property in New York by devise from a citizen or resident alien, who has purchased and taken it and to whom such aliens are related by blood; but if they be resident males of full age, they hold subject to the right of the State to take it from them unless they declare their intention to become citizens. The effect of such declaration expires, however, if they fail to become citizens within six years after it is made. L. 1875, ch. 38; R. S. (8th

ed.), p. 2420, §§ 15, 16 (1 R. S. 720); Hall v. Hall, 81 N. Y. 130; Callahan v. O'Brien, 72 Hun, 216; Wright v. Saddler, 20 N. Y. 320. Non-resident aliens may now take real property in New York by devise from citizens and hold and transmit it the same as if they were themselves citizens. L. 1893, ch. 207.

§ 46. "A will executed by an unmarried woman is revoked by her subsequent marriage." N. Y. R. S. (8th ed.), p. 2548 (2 R. S. 64), § 44.

A widow is an unmarried woman within the meaning of this statute. In re Kaufman's Will, 131 N. Y. 620.

§ 56. Before January 1, 1830, the power of a married woman to make wills in New York was substantially regulated by the common law and English statute of frauds. 1 R. L. (1813), 365, 367, §§ 5, 16. The R. S. (Jan. 1, 1830) took away her power to will away personalty with the consent of her husband (2 R. S. 60 § 21; Moching v. Mitchell, 1 Johns. ch. 264, 271), and to dispose by will of her separate personal property (Wadham v. American Home Missionary Society, 12 N. Y. 415; Beardsly v. Hotchkiss, 96 N. Y. 201); and after that date until 1849, she could devise under such a power only as was given pursuant to those statutes. She now has full power to dispose of both real and personal property by will. L. 1849, ch. 375; L. 1867, ch. 782, § 4. See Bertles v. Nunan, 92 N. Y. 152.

70. For recent decisions, stating the criterion of testamentary capacity of mind. and illustrating the principles stated in the text and leading case of Waddington v. Buzby, see Matter of Wheeler, 5 N. Y. Misc. 279, 282; Matter of Snelling, 136 N. Y. 515; Howell v. Taylor, 26 Atl. Rep.

566 (N. J. Prerog.); 23 Atl. Rep. 986 (Pa.); 88 Mich. 567.

881. Though a person be under guardianship he may make a valid will; but the burden is then strongly on the proponent to show that the testator had testamentary capacity when he executed the will. Harrison v. Bishop, 131 Ind. 161; Brady v. McBride, 39 N. J. Eq. 495; In re Pendleton's Will, 5 N. J. S. 849.

§ 95. A speechless paralytic may make a will by signs. Rothrock v. Rothrock, 22 Or. 551.

§§ 146, 147. For cases defining insane delusions and distinguishing them from other delusions and from eccentricity, see Re Will of White, 121 N. Y. 406; In re Frick's Will, 19 N. Y. S. 315; Smith v. Smith, 25 Atl. Rep. 11; Carpenter v. Bailey, 94 Cal. 406; Potter v. Jones, 25 Iowa, 23; 54 N. W. Rep. 911. Pac. Rep. 769 (Or.); 47 Mich. 313; 61

burden of proof is on the proponent to § 170. For authorities holding that the show mental capacity in the testator, see In re Cottrell, 95 N. Y. 336; N. Y. Code Civ. Pro., § 2623; Morton v. Paxton, 19 S. W. Rep. 807 (Mo. Sup.); Prentis v. Bates, 93 Mich. 234; Baldwin v. Parker,

99 Mass. 79; Caldwell v. Anderson, 104 Pa. St. 199, 204.

Contra, Eastis v. Montgomery, 95 Ala. 486; Knox v. Knox, 95 Ala. 495; Potter v. Cilley, 46 Fed. Rep. 892; McCoon v. Allen, 45 N. J. Eq. 708.

See article collating the cases, 36 Cent. L. J. 408.

218. "The mistake which, when shown by extraneous evidence, will avail to set aside a will, is a mistake as to what it contains, or as to the paper itself, not a mistake either of law or fact in the mind of "a competent testator, as to his sur

roundings at the time of making the will the conduct of his family towards him, or the effect of what he actually and intentionally did. Martin v. Thayer, 37 W. Va. 38, 48; Clapp v. Fullerton, 34 N. Y. 190; Matter of Bedlow, 67 Hun, 408, 414; Goods of Boehm (1891), Prob. 247.

But where the testator in giving a legacy is also discharging a legal obligation, a mistake in amount may be corrected by reference to the legal documents which establish such obligation. Burrows v. Clanbrock, 27 L. R. Ir. 538.

§§ 227, 228. Influence is undue when it overpowers the will of the testator and subjects it to the will and control of some other person. For recent cases discussing its nature and tests, see Matter of Snelling, 136 N. Y. 515; In re Armor's Est., 154 Pa. St. 517; Hampton v. Westcott, 25 Atl. Rep. 254; Kerr v. Lunsford, 31 W. Va. 659; In re Budlong's Will, 126 N. Y. 423; Carroll v. House, 22 Atl. Rep. 191; 64 L. T. Rep. 778; 153 Pa. St. 243; 47 Mich. 313; 54 N. W. Rep. 911 (Mich.); 95 Ala. 495.

§§ 239, 246. It may be stated as the general rule in this country, that when a will is contested upon the ground of undue influence, the burden of proof rests upon the party who alleges such influence. Matter of Will of Martin, 98 N. Y. 193; Potter's Appeal, 53 Mich. 106; Baldwin v. Parker, 99 Mass. 79; Dumont v. Dumont, 46 N. J. Eq. 223; Patten v. Cilley, 46 Fed. Rep. 892. The fact that the beneficiary was the guardian, attorney or trustee of the testator does not, of it

self, create a presumption against the testamentary gift, nor change the rule as to the burden of proof, though such relations give rise to the presumption of fraud and undue influence in cases of contracts or gifts inter vivos. Matter of Will of Smith, 95 N. Y. 516; Loder v. Whelpley, 111 N. Y. 239, 249; Green v. Roworth, 113 N. Y. 462, 470; Bancroft v. Otis, 91 Ala. 279; Eastis v. Montgomery, 93 Ala. 293, 95 Ala. 486; Chandler v. Jost, 11 So. Rep. 636 (Ala.).

Contra, i. e., that such relations between testator and beneficiary do change. the burden of proof. Jones v. Roberts, 37 Mo. App. 163; Maddox v. Maddox, 21 S. W. Rep. 499 (Mo. Sup.); Bridwell v. Swank, 84 Mo. 455; Griffin v. Diffendorfer, 50 Md. 466.

But when other facts exist, which tend to show that advantages might have been taken, or probably was taken, of his position by the beneficiary to influence the testator, the burden of proof is cast upon the proponent. Matter of Wheeler, 5 N. Y. Misc. 279, 287; Richmund's Appeal, 59 Conn. 226.

In England the burden rests generally upon the proponent to show that the testator was free from undue influence. Parker v. Duncan, 62 L. T. Rep. 642; Fulton v. Andrews, L. R. 7 H. L. Cas. 448, 461.

§ 254. For the statute declaring what wills may be admitted to probate in New York, see N. Y. Code Cir. Pro., § 2611; Vogel v. Lehritter, 139 N. Y. 223.

MALICIOUS CONSPIRACY; MALICIOUS

PROSECUTION.

Pp. 124-127. Where a servant conspired with a third person to obtain the secrets of his master's business, and was thus enabled to rival his master in trade, Held, that an action of conspiracy lay against them, and that one might be convicted and the other acquitted. (Jones v. Baker, 7 Cow. 445.)

The action in such a case is really for malicious prosecution, or malicious combination to injure another, and is sustained by proof of malice, damage, and want of cause. (Parker v. Huntingdon, 2 Gray 124; see Verplank v. Van Buren, 76 N. Y. 471.)

Pp. 180-192. The elements of an action for malicious prosecution are these: (1) that the defendant instituted or instigated the prosecution; (2) that he did it of malice; (3) that he had no reasonable or probable cause for so doing; and (4) that the proceeding has terminated, and that its termination was in favor of the party now suing therefor, if it was capable of such termination. (Miller v. Mulligan, 48 Barb. 30; Vanderbilt v. Mathis, 5 Duer 340; McKown v. Hunter, 30 N. Y. 625.) The burden of proving all these elements is on the plaintiff, if the defendant plead a denial.

Difference between False Imprisonment and Malicious Prosecution.-"To maintain an action for false imprisonment, it is enough in the first instance to show

that the plaintiff had been deprived of his liberty without legal process. If the arrest was made by a peace officer, it is a complete answer to show that there was probable cause to believe that a felony had been committed and that the person arrested was the perpetrator. If by a private person, it is necessary to go one step further and show that a felony had in fact been committed, as well as a reasonable cause to believe that the defendant was guilty of the offense. But in an action for malicious prosecution, it is necessary to show not only the institution of a prosecution, but that it was instituted without probable cause and maliciously. The absence of probable cause being shown, malice will ordinarily be inferred, unless there be extenuating circumstances, such as that the prosecutor submitted the facts fully to counsel learned in the law and acted under his advice. What is probable cause and whether it exists in the proofs, if believed, is a question of law; whether the proof establishes the facts relied upon as constituting probable cause is a question for the jury." Mahaffey v. Byers, 151 Pa. 92.

"Malice," as involved in malicious prosecution, means malice in fact, not in law. "Malice in fact " is defined as "any actual wrong motive," being somewhat broader than "malice" in the popular acceptation of that word. It is not necessarily directed against any particular person. On account of this difference between the

legal and the popular meaning of the word, some judges use the expression "malice in law," in this connection, though they mean thereby "malice in fact," in the legal sense of that term; but it must never be confused with "malice in law" in the proper sense of that phrase. "Probable cause" is defined as such grounds of suspicion as would satisfy a reasonable, prudent, and cautious man of the truth of the charge or accusation. (See Foshay v. Ferguson, 2 Den. 617; Heyne v. Blair, 62 N. Y. 19.) A real belief and reasonable grounds of belief must concur to afford a justification. (Farman v. Feeley, 56 N. Y. 451; and see Fagnani v. Knox, 66 N. Y. 525.) Want of probable cause is not conclusive proof of malice. (See Pullen v. Glidden, 66 Me. 202; Merriam v. Mitchell, 13 Me. 439.) A recent Pennsylvania case holds. that the word "cautious" should be omitted from the definition of probable cause. (McClafferty v. Philp, 151 Pa. 86.)

As to what is a sufficient termination of the prosecution, see Cardival v. Smith, 109 Mass. 159 (leading case); Brown v. Randall, 36 Ct. 56; Fay v. O'Neil, 36 N. Y. 11. The general principle is that it is sufficient if the proceeding be so far ended that nothing can be done without beginning anew. (Clark v. Cleveland, 6 Hill, 344; Robbins v. Robbins, 133 N. Y. 597, hence a discontinuance of the proceeding in its early stages, before a trial is ever reached, may be deemed sufficient. As to the effect of appealing the case, see Marks v. Townsend, 97 N. Y. 590.

The fact that the defendant acted upon the advice of counsel will avail as a defense, if the advice was obtained and acted on in good faith, after a full and fair presentation of the facts of the case

to counsel for his consideration. (Stewart v. Sonneborn, 98 U. S. 187; Perry v. Sulier, 92 Mich. 72.) But such advice will be no protection if it was obtained by misleading the counsel, or if counsel and client collude together to institute an unfounded prosecution, and in other like

cases.

It has been held in many cases that the advice of magistrates who are not counsellors at law is no protection; but a recent decision in Massachusetts held that where the magistrate was a counsellor at law, evidence that the complainant acted upon his advice was admissible. (Monaghan v. Cox, 155 Mass. 487.)

It is held in New York that, where one makes a false and malicious charge against another and thus procures the indictment and arrest of the latter, it is no defense to an action for malicious prosecution that the false accusation did not allege facts constituting the crime charged in the indictment or any other criminal offense. (Dennis v. Ryan, 65 N. Y. 385.)

An action for malicious prosecution will lie, though the prior proceeding, claimed to have been malicious, was a civil action, when there has been a malicious arrest or an attachment, and the action has been discontinued. (Pangburn v. Bull, 1 Wend. 345.) In some States a defendant in a civil action who has obtained a verdict with costs, may still sue for damages, if the action was malicious and without probable cause. In other States, however, the recovery of costs is deemed sufficient redress. It has been held in Pennsylvania that no action will lie for a malicious civil action where there has been no interference with person or property, as e. g., by arrest or attachment. (Muldoon v. Rickey, 103 Pa. 110.) Other