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is the undoubted law of Massachusetts that any action of a probate court, in the exercise of its normal jurisdiction, with reference to the construction of Mr. Langworthy's will, would have been void. Cowdin v. Perry, 11 Pick. 503; Granger v. Bassett, 98 Mass. 462. In this particular, the normal jurisdiction of the probate courts of Massachusetts remains as it does everywhere in the absence of special legislation, and it leaves to the courts of common law and the chancellor all questions of the construction and effect of devises and legacies. Therefore, notwithstanding the statute referred to in Bennett v. Kimball and Green v. Gaskill, in the absence of any showing that the probate court, on its equity side, passed on the question which, as we have said, is the only one necessary for us to consider, there is no doubt about our jurisdiction. The same result, under legislation in Maryland similar to that in Massachusetts, is reached by a decision of the circuit court of appeals for the District of Columbia, cited as approved in Kenaday v. Sinnott, 179 U. S. 606, 615, 21 Sup. Ct. 233, 45 L. Ed. 339.

Act Mass. 1895, C. 134, which is the only statute enlarging the jurisdiction of the probate courts brought to our attention later than the act of 1891, which was under consideration in Bennett v. Kimball

, need be referred to merely for the purpose of stating that it is aside from any of the topics which we have before us.

The question remains whether or not the allegations referred to, stating that certain proceedings have been approved by the probate court, can be accepted as intending the exercise by it of its statutory equitable jurisdiction. In the absence of any allegation otherwise, we are justified in assuming that the reference to it is merely as a court of probate, and the positions taken by the parties at the hearing sustain that assumption. Therefore we hold that we have jurisdiction on this appeal as to the validity and effect of Mr. Langworthy's will, and over no other question.

The issue as to the power of the American Congregational Association to comply with the terms of the legacy is one easily disposed of on various theories. The fact that the association has, by its charter, certain enumerated powers, does not bar it from the exercise of incidental functions which relate to the accomplishment of the substantial purposes of its incorporation (Association v. Moore, 183 U. S. 642, 22 Sup. Ct. 240, 46 L. Ed. -); and all occasion for any securing of the annuity by the association had gone by before the legacy was paid to it, and before, so far as the case shows, the estate was in condition to pay it conveniently, so that this topic is only a moot one.

Coming to the only other proposition which we have to consider: With two or three peculiar exceptions, as to which the law has necessarily established rigid rules, relating almost entirely to the descent of real estate, wills receive reasonable and fair construction, for the purpose of ascertaining the real intent of testators. Courts make use of various incidental rules to assist them in thus construing wills : but none, with the rare exceptions to which we have referred, are permitted to obstruct the effectuating the substantial purpose of the instrument in question. Having in view the facts that, so far as this case shows, the legacy was paid to the association as soon as the progress of the estate would conveniently permit of its being done; that the will gave directions that it should be paid accordingly; that, when it was so paid, Mrs. Langworthy had deceased; that the presumption is that her annuity had been received by her from the executor during her lifetime; and that, therefore, the provision with reference to any agreement as to an annuity had become of no further use,-it requires a strong stretch of any method of reasoning to lead the mind to conclude, fairly and reasonably, that under such circumstances, or under the circumstance of his wife having deceased before him, Mr. Langworthy intended to annul this legacy. There is no reasonable ground for sustaining such an hypothesis; and, looking at the will fairly and reasonably, it cannot be questioned that it was the desire of Mr. Langworthy, under the circumstance of his wife deceasing before him, or, likewise, of his wife deceasing after him but before the legacy was paid, that it should vest absolutely in the association.

To come more closely to the matter, the condition named, according to all the rules of construction, was not precedent, but subsequent. The law leans strongly against construing a legacy or devise so that it does not vest on the decease of the testator. This rule was fittingly expressed for this case by Mr. Justice Swayne, speaking in behalf of the court, in Cropley v. Cooper, 19 Wall. 167, 174, 22 L. Ed. 109, 113, where he said “that a bequest, in the form of a direction to pay at a future time, vests in interest immediately it the payment be postponed for the convenience of the estate, or to let in some other interest." By the express terms of the legacy, the postponement of payment in this case was purely “for the convenience of the estate. This rule favoring the vesting of estates is so well known that it is not necessary to accumulate authorities, and, applying it as it is usually applied, there can be no question that the legacy in issue vested at the death of Mr. Langworthy, although not payable until later. Vesting at that time, everything in it in the form of a condition must, from the necessity of things, be regarded as subsequent. We think we may safely say that this is the rule laid down by all the text writers of authority, and also it is so stated by Chief Justice Marshall in Finlay v. King, 3 Pet. 346, 376, 377, 7 L. Ed. 701, 712. The case at bar seems to be precisely covered by that paragraph of the syllabus which was prepared by the court itself, where it is stated that the court had found no case in which a general devise, importing a present interest, in a will making no other disposition of the property, on a condition which may be periormed at any time, had been construed, from the mere circumstance that the estate was given on condition, to require that it must be performed before the estate could vest.

The condition being subsequent, and its performance having been rendered impossible by the death of Mrs. Langworthy, it became void, and the legacy became absolutely effective. This was directly ruled by Lord Romilly, in 1866, in Collett v. Collett, 35 Beav. 312. Although this decision was by the master of the rolls, yet it has never been questioned in England. In Dawson v. Oliver-Massey, 2 Ch.

Div. 753, while the application of Collett v. Collett was doubted, both the then master of the rolls and the court of appeal accepted it as law. It is accepted by Jarm. Wills (6th Am. Ed.) from the 5th Eng. Ed. *851, where, also, at page *853, is laid down the wellknown rule that conditions subsequent are to be construed strictly; that is to sav, they are not to be so construed as to unnecessarily defeat the devise or legacy. Indeed, if it were necessary, in order to sustain this legacy, and thus to give effect to the intent of the testator, no weight would be given to the conditional form of expression as to the agreement to be given by the association. This well-known rule is stated in 2 Williams, Ex'rs (7th Am. Ed.) 567, to the effect that a bequest on condition may be considered as merely imposing a trust. We have already shown that this annuity could not be regarded merely as a charge raised on the legacy in the way of a trust; but the case is met in that particular by Stanley v. Colt, 5 Wall. 119, 166, 18 L. Ed. 502, 510, to the effect that a proviso in a will “gives way to the intent of the parties, as gathered from an examination of the whole instrument, and has frequently been thus explained and applied as expressing simply a covenant or limitation in trust." In other words, in this case, if necessary, the words “on condition,” and so forth, could properly be read, “subject to a covenant or agreement by the association to pay an annuity,” and so on.

On the whole, we sum up that there are no allegations charging the association with any express or implied renunciation of the legacy in issue; that, as the legacy vested on Mr. Langworthy's decease, the condition, even if it were strictly such, was, from the necessity of things, a condition subsequent; that according to the authorities, and the reasonable construction to be given as to the intent of the testator, the condition, whether it be regarded as such or as a mere covenant or agreement, had been rendered futile by the decease of Mrs. Langworthy, and the legacy thereupon vested absolutely in the association; and that, therefore, the bill was properly dismissed by the circuit court.

The decree of the circuit court is affirmed, and the costs of appeal are awarded to the appellees.

LOWELL, District Judge, concurs in the result.

(113 Fed. 615.)

HOBBS MFG. CO. v. GOODING et al.
(Circuit Court of Appeals, First Circuit. inuary 24, 1902.)

No. 366.

INJUNCTION-SUIT FOR INFRINGEMENT OF PATENT—MISUSE OF Court's OPIN

Iox.

The mere fact that a complainant in a suit for infringement of a patent, in whose favor a decision has been rendered by the circuit court of appeals, before the sending down of the mandate publishes circulars in which he makes extravagant claims as to the scope of the decision, based upon his interpretation of the court's opinion, is ordinarily not such a case of wrongdoing as calls for the court's interference by in. junction, though it may probably exercise such power in an extreme

case.

On Petition for an Order Restraining Complainant, and for Other Relief.

Edward S. Beach, for complainant.
William A. Macleod, for petitioners.

Before COLT and PUTNAM, Circuit Judges, and ALDRICH, District Judge.

ALDRICH, District Judge. Upon this petition for relief against what is claimed to be an unwarrantable use of the opinion of this court, after decision and before mandate was handed down, we need not examine or discuss the question of jurisdiction. Neither need we discuss the question of the power, nor the extent of the power, of this court in respect to punishment for contempt in misuse or abuse of its process. Nor is the power of the court over its own process, as between the parties, necessarily controlled by the rule of noninterference with press publications as to disputed rights and claims of different parties as to the scope of its decisions. It is probably true that, in a case of honest disagreement or misunderstanding as to the true import of a decision, or in an extreme case of abuse or misuse of process for the purpose of impairing or destroying rights sought to be established by the court through its decision, the court may proceed summarily in reference thereto. Such power, however, would be exercised with reluctance, and ordinarily only in an extreme or clear case.

The circular letter complained of sets out more than the court decided, but an examination of the opinion d: closes no ambiguity or uncertainty as to what was decided; and, on the whole, we do not think the facts set out in the petition constitute a case of such wrongdoing as calls for our interference. At the most, it was an extravagant claim by a party as to the scope of the decision, based upon his interpretation of the opinion which this court had handed down.

Petition denied.

(113 Fed. 627.)

LEPPER et al. v. RANDALL.
(Circuit Court of Appeals, Third Circuit. February 3, 1902.)

No. 12, Sept. Term, 1901.
1. PATENTA-INFRINGEMENT-DOCTRINE OF EQUIVALENTS.

A patentee is not to be denied protection commensurate with the scope of his actual and distinctly described invention by wholly exclud. ing him from the benefit of the doctrine of equivalents, even as against one who has made only such changes as are palpably colorable and of such character as to show that they were studied evasions of the par

ticular devices described in the patent. & SAME-Ham Boiling WRAPPERS.

The Merrill & Lepper patent, No. 624,839, for a wrapper for hams, claim 3, which claims a wrapper "and lacing derices on the back thereof,” is infringed by a wrapper which is in all respects identical with the patented article, except that the fastenings are straps and buckles, instead of a lacing cord engaged with hooks, studs, or eyelets. Appeal from the Circuit Court of the United States for the Eastern District of Pennsylvania.

E. Hayward Fairbanks, for appellants.
William Morris, for appellee.
Before ACHESON, DALLAS, and GRAY, Circuit Judges.

DALLAS, Circuit Judge. This is an appeal from a decree dismissing a bill which charges infringement of letters patent No. 624,839, dated May 9, 1899, for "wrappers for hams.” 105 Fed. 975. The specification states that:

The “invention consists of a wrapper for boiling a ham therein, more particularly a boneless ham, the same being formed of a piece of canvas or other suitable fabric adapted to envelop a ham, and means for tightly compressing the wrapper thereon and preventing opening thereof, whereby the ham is guarded against disintegration and its juices are retained within the wrapper, thus producing superior results in the flavor, compactness, and appearance of the ham.”

The drawings accompanying the specification exhibit a mat or piece of fabric upon which there are four rows of hooks, arranged at right angles, so as to form a quadrilateral figure within the ends of the wrapper. For engagement with these hooks, a cord is provided, and together they constitute a lacing device, by means whereof the ham is tightly and closely secured within the mat. The only claim in question is as follows:

“(3) A wrapper of the character named, formed of a mat and lacing devices on the back thereof, between the corners and center thereof, in series at an angle to each other and to the sides of the mat.”

As was said by the court below: "This invention met with a good deal of success, between 10,000 and 15,000 wrappers being sold during one year. Not long after its introduction to the public, the defendant began to make and sell a wrapper which is in all respects identical with the patented article, except that the fastenings are straps and buckles, instead of a lacing cord, engaged with hooks, studs, or eyelets."

51 C.C.A.-22

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