the record in partition was awarded accordingly. The purpose of the present proceeding on behalf of a judgment creditor, is to have this trust declared dry, and the claim of that creditor paid as being a lien on the fund.

The petitioner called George House to show that he was in fact competent to take care of his share; but his testimony only served to corroborate the judgment of his father. In his examination in chief he declared that he had never heard his ability to take care of his own affairs questioned; and yet on cross examination, admitted his father had created this trust because of his drunken habits; that he earned three dollars per day as rollman, and spent a good bit in drink on pay day; that he gave his wife judgment notes with which to raise money, did'nt know what had become of the proceeds, and did'nt try to trace them. Speaking of petitioner's judgment, the testimony proceeds: "Q. Did you give a judgment note of $600 to Samuel Dierstein?

Q. And you owe Samuel Dierstein? A. Yes; $600 for money received by my wife and myself.

Q. What did you do with the $600 you got from Mr. Dierstein in 1902?

A. I did not do anything with it; I did not get it.

Q. Did your wife get it?

A. She got the biggest part of it.

exercised, his share is asset for the payment of her judgment; and

(2) That the language used by testator is not apt to create a spendthrift trust. OPINION. Filed November 20, 1903. It must of course be conceded that if a testator expresses a wish only with respect. to the application of property without imposing any command or creating a trust, it is probable that in most cases he intends to leave the parties at liberty to carry out his wish, or not, as they may think fit; or at least to impose only a moral as distinguished from a legal obligation; but it is equally true. that where there is an expression of a wish or desire on the part of the testator, accompanying a devise or bequest, that a particular application will be made of the property, it is prima facie considered as obligatory; Hawkins on Wills, 159. Thus where as here a testator gave his wife his whole estate, accompanied by the expression of a "wish" that such part of the estate as remained at her death should go to his nephews and nieces, the word "wish" was held mandatory; Fox's Estate, 11 W. N. C. 236. So where a devise was made to O. for his support, and he should be spared to have family, I desire the above estate to go to his children, it was held that the word "desire" was as mandatory as if the words "I will," or "I order and direct" had been used, and O. took an estate for life only. So where words expressive of hope, desire or recommendation, are addressed to an executor,

A. Yes.

official relation of the parties that they were intended to be used in a mandatory sense; and was accordingly held in Burt v. Herron, 66 Pa. 400, that an expression of a "desire" that a specified firm's debt should be paid, was mandatory. To the same effect is Van Dwyue v. Van Dwyne, 1 McCart 405.

The

any way? A. No.

Q. You dont know what became of any part of this money that you borrowed? A. No, I do not."

It is insisted on behalf of petitioner, (1) That the creation of a trust for her debtor was left entirely in the discretion of the executors, and as this dircretion was not

must be gathered from the circumstances in which testator was placed, and the whole scope of the will.

It

If this principle be applied here, the solution of the first question raised is plain. cannot be assumed that testator would be guilty of the folly of conferring a bounty which he knew would be wasted. When the fact of the infancy or insanity of a legatee

is shown, incompetency is implied, and a trust for protection is raised as of course. So this testator's belief in the fact of his legatees incapacity raised the presumption of intended protection; and made his "advice" to his executors "to have" a guardian appointed for that purpose not a mere discretion, but a duty. Testator in effect says to his executor, I intend my son shall have the enjoyment of a share of my estate, but his improvident disposition is such that if you should pay it into his hands my purpose will fail and therefore I warn you that a trust is essential. The warning was imperative; and the trust cannot be defeated by the refusal or neglect of the executor to nominate a guardian. The judgment of the testator as to the incompetency of his legatee, and the right to ensure the enjoyment of his bounty, are not open to question here. The creation of every trust implies incompetency in the beneficiaries, else the trust would be unnecessary. But assuming that his judgment may be made the subject of inquiry here, the evidence amply justifies it; his son is the personification of improvidence, and the fact that the latter had taken no action toward revocation, implies that he concedes the propriety of the appointment of a guardian.

(2) The restrictions imposed upon this legatee's use equally effect his creditors; what he can not do, they can not do. It is not essential a spendthrift trust should contain words providing specifically that the fund shall not be subject to the debts and liabilities of the cestui que trust; Winthrop Co. v. Clinton, 196 Pa. 472. It is enough if the circumstances in which the disposition was made and the terms of the will show that such was testator's intent. This testator's knowledge of his son's improvidence and insolvency, and the fact that while he gave his daughters absolute estates, he "advised"—that is, directed his executors-"to have" a guardian appointed for his sons, expressly upon the ground that they were incapable of "maintaining" their shares, show the reason and purpose for creating a trust; Stambaugh's Estate, 135 Pa. 585. There being then reason and a purpose to create a spendthrift trust, was it sufficiently declared? It has been seen that under a

well settled principle words expressive of hope, desire, or recommendation, addressed to an executor, through whom only distribution can be made, must be regarded as mandatory; and therefore the duty of this executor "to have a guardian appointed" for George's share; testator's expression of desire was a command; Burt v. Herron, supra. It was not essential to the validity of this trust that there should have been a specification of the manner of administration and enjoyment; it is enough if this is necessarily implied in testator's purpose. Thus it was said in Stambaugh's Estate, supra, that, notwithstanding the will lacked some of the usual provisions in creating spendthrift trusts, "notably a clause prohibiting the income from attachment, etc.," if it could be gathered from the will and the light of circumstances in which testator was placed at the time he made it, his intent was to create such trust it ought not be defeated because the scrivener blundered. In other words, the intent to create a trust being established, the incidents which belong to it will be implied. In Stambaugh's Estate the omission to insert the usual provision excluding creditors where the intent to create a spendthrift was shown, was supplied; and there is just as much reason in the present case to imply the imposition of active duties on the guardian appointed in pursuance of testator's direction, for these grow out of the necessities of the case. No one would deny the validity of a trust created for the benefit of a person under disabilities, as an infant, or a lunatic, because the donor had omitted to make provision for the manner of adminis tration and of enjoyment of this bounty; the law assumes their incompetency and vests in the guardian or committee discretionary powers, subject to its supervision; Kreb's Estate, 184 Pa. 222; Hill on Trustees, 399. So here the need of protection from the donees improvidence was the purpose the trust, and the appointment of the guardian implied the performance of incidental duties. The need of protection, and therefore the performance of active duties, are necessarily implied in the very term, "Spendthrift Trust."

of

It follows that the petition must be dismissed.

For petitioner, John S. Carr.
For respondent, Thos. J. Ford.

PHOTOGRAPHS AND BERTILLON MEASUREMENTS OF EX-CONVICT. The application of Roland B. Molineux for a peremptory writ of mandamus to compel the superintendent of prisons to surrender to him certain photographs and and measurements taken while Molineux was a state convict was recently before the Supreme Court in the reported case entitled In re Molineux, 83 New York Supplement, 943. These photographs and measurements were taken after Molineux had been convicted of murder and before this conviction was reversed by the Court of Appeals and he had been subsequently acquitted on a second trial. The petition is denied, first, upon the ground that the relator must have a clear legal right to that which he seeks, and that this right has not been pointed out in the present proceedings. The court further says that the public convenience to be affected by the granting of this writ should also be considered. The photographs and measurements are simply a part of the other records which go to make up the inevitable track of the struggle for liberty of this relator, and that to undertake to blot out this track or record would be a public inconvenience, if not an impossibility.

POSSESSORY rights only are held, in Cahill v. Cahill (Conn.) 60 L. R. A. 706, not to be sufficient to sustain an action of ejectment without showing the legal title.

A JUDGE of a court of record is held, in Webb v. Fisher (Tenn.) 60 L. R. A. 791, not to be subject to a private action for oppressively, maliciously, and corruptly entering a decree disbaring an attorney.

THE use of property in the business of interstate commerce is held, in Sandford v. Poe (C. C. A. 6th C.) 60 L. R. A. 641, not to exempt it from liability to taxation like other property within the jurisdiction in which it is situated.

WHERE a claim has been unconditionally withdrawn, a like claim but for a different amount may not be filed after the expiration of the year upon the theory that it is an amended claim; In re E. O. Thompson's Sons, 10 Am. B. R. 581.

THE proprietors of a saloon are held, in Curran v. Olson (Minn.) 60 L. R. A. 733, to be liable for an injury to a guest therein caused by a third person pouring over his feet, while he was asleep, alcohol procured from the bartender, and setting fire to the same.

THE measure of damages for wrongfully disconnecting a telephone because of a mistake as to the payment of rent is held, in Cumberland Teleph. & Teleg. Co. v. Hendon (Ky.) 60 L. R. A. 849, to be the amount which will compensate the patron for the injuries caused by the breach of contract.

THE fact that a telegraph line is engaged in interstate commerce is held, in Western U. Teleg. Co. v. Taggart (Ind.) 60 L. R. A. 671, not to prevent a state tax on the value of that portion of the property which is within the state, although the value of the whole line as a unit is taken into account With these cases is in fixing such value. an extensive note on corporate taxation and the commerce clause.

POWER to adopt a regulation requiring lessees of lots to purchase all supplies from the lessor is held, in Thousand Island Park Asso. v. Tucker (N. Y.) 60 L. R. A. 786, not to be reserved to an association organized for the maintenance of a camp meeting by a provision in the leases that the lessee shall keep and perform all such conditions or rules as the lessor shall from time to time impose, since such requirement is not reasonable.

THAT the new grounds for refusing a discharge, added to section 14b by the Amendatory Act of 1903, are not available as grounds for denying a discharge in proceedings instituted prior to taking effect of said amendment, see In re Dauchy, 10 Am. B. R. 527, where it is held that in all bankruptcy cases prior to February 5, 1903, a transfer of real estate by a deed absolute, made without consideration and not limited by an agreement retaining some interest in the grantor, there was, as to such property, no concealment by the grantor while a bankrupt, from his trustee, of property belonging to the estate.

on its face, of said billets, which by reason of their weight and bulk were permitted to remain on the premises of the vendor. billets, however, were marked by a sign, posted on the several piles, setting out that they were the property of the First National Bank of New Kensington. In October, 1901, the steel company paid one-half of said note, and the bank released one-half of said bil

A made a loan to B taking as security for this and future loans an assignment, absolute on its face, of certain steel billets. The billets were left in B's possession, but were marked as the property

of A. Sometime later these marks were obliterated and remained so for several months. As soon as A learned of that fact it caused the billets to be remarked. B was declared a bankrupt about a month later. Held, that A's lien on the billets was valid.

The trustee in bankruptcy takes the property in question as a purchaser from the bankrupt with notice of all outstanding rights and equities.

No. 19. September 1, 1903. Appeal from the District Court of the United States for the Western District of Pennsylvania.

Before ACHESON and DALLAS, Circuit Judges, and KIRKPATRICK, District Judge. Opinion by KIRKPATRICK, D. J.

It appears from the record that on August 30, 1901, the appellant herein discounted a promissory note of the Hussey Steel Company for $4,000, payable on demand, and took as security therefor 200 tons of steel billets. Incorporated in the note was the provision that the said collateral was to stand as security for the "payment of this or any other liability or liabilities, contingent or absolute, of ours (the Hussey Steel Company) to the holder hereof, now due or that may be hereafter contracted." On the same day the Hussey Steel Company executed and

counted another note of the steel company for $2,000. Neither the last-named note nor the record fails to show how long the signs giving notice of the change of ownership of said billets, which were placed thereon August 30, 1901, remained in position; but the testimony of Mr. Lyon, who entered the employ of the steel company October 5, 1901, is that at that date they were not to be seen.

The evidence fails to show that the bank had any knowledge of the removal or destruction of the signs until some time in March, 1902, when they caused the billets to be re-marked by having their initials painted on the same. On April 23, 1902, the Hussey Steel Company was adjudged bankrupt upon a petition filed by creditors March 31, 1902, and afterwards the Pennsylvania Trust Company was appointed receiver. Upon the receiver's refusal to permit the bank, on request, to remove the billets, a rule to show cause was granted why the bank should not be permitted to do so, and this rule was afterwards discharged, and appeal taken.

It cannot be disputed that on the 30th day of August, 1901, when the bank discounted the note of the steel company, and took the bill of sale of the billets, it acquired a good and valid title thereto as between itself and the steel company. To complete its title or lien as against creditors and strangers, the bank was not obliged to take the billets into actual possession; it was sufficient to give notice of their lien or change of ownership. This they did by posting on the billets, which were in distinct and separate piles, the sign to which reference has been made, so that on August 30, 1901, the title of the bank or its right to a lien on the billets was good as against all of the world. If this situation had continued until after