text:
    No. 12,537.
    State of Louisiana vs. Patrick Paine.
    Tlie trial judge having selected and appointed competent physicians as exports to make an examination of the mental condition of the defendant, with the object in view, that they as witnesses should be better prepared to intelligently state his situation to the jury at the trial, it was not a condition precedent to the trial being proceeded with, that the physicians should make a written and detailed report of such an examination to the court.
    A PPEAL from the Fifth Judicial District Court for the Parish ^ of Ouachita. Potts, J.

      M. J. Cunningham, Attorney General, and J. P. Madison, District Attorney, for Plaintiff, Appellee.

      Frank Vaughan and E. T. Lamlcin for Defendant, Appellant.
    Argued and submitted June 5, 1897.
    Opinion handed down June 14, 1897.
   The opinion of the court'was delivered by

Watkins, J.

The defendant appealed from a verdict convicting him of the crime of murder, and a sentence of death — alleging insanity as his defence.

The record is very meagre and furnishes but two bills of exeep - tions which were retained by the defendants eounsel.

I.-'

. The first bill of exceptions appertains to the objection which the defendant’s counsel urged to going to trial^when the case was called for trial. ,

■The bill relates that when the c?ise - was called for trial counsel objected to going to trial for the jpason that the order appointing .physicians as experts to examine into the mental condition of the defendant, with a view of determining bis. sanity or insanity, had not ■been complied with, said experts having-jbresented no report; and ‘that in the absence of such report .the- defendant should not be compelled to go into the trial. L-

’. . At least, the foregoiog is the purport of the objection which is assigned by counsel in the bill of exceptions, and to which the trial judge replied as follows, viz.:

“ When the application for the appointment of three physicians was presented to the court, I stated that I would designate three physicians who could examine the defendant and -be summoned as witnesses, and testify upon the trial of the case before the jury as to the sanity or insanity of the prisoner. These same witnesses were summoned as witnesses, and all three attended the trial. The defendant did not call or examine either one of them as a witness. The State, in rebuttal, called Dr. Forsythe and asked him about the mental condition of the defendant. It was never contemplated that these physicians should make a report to the court; but, on the contrary, they were appointed simply that they might qualify themselves in advance, to testify on the trial.”

The correctness of the judge’s conclusions is undeniable and his ruling was undoubtedly correct.

The physicians were only intended to render service to the court as expert witnesses in the course of the trial, and it was the duty of defendant’s counsel to have placed them on the stand and interrogated them with reference to the sanity of their client, carrying the burden of proving his sanity by a fair preponderance of the evidence as the defendant did. State vs. Scott, 49 An. 253.

II.

The second bill of exceptions relates to the alleged error of the trial judge in declining to grant the defendant a new trial.

The ground principally assigned and now pressed upon our attention is that the committee of expert physicians had not, at the time of the trial, made any formal report to the court with regard to the sanity of the defendant, and that a trial having been erroneously ordered in the absence of such report, a new trial should have been granted for the purpose of allowing said experts to examine into and investigate the mental condition of the defendant before sentence is pronounced upon him.

The trial judge assigns as his reason for refusing the new trial, the same reasons he had already assigned in the previous bill, to the effect that the physicians had only been previously designated as expert witnesses, so that they might make an examination into the mental condition of the defendant beforehand, the better to enable themselves to furnish the court with an intelligent statement of his situation.

The reason holding good for his refusal to postpone the trial to enable the physicians to make a formal report, it must be deemed equally good for his declination to grant a new trial.

The theory of defendant’s counsel seemed to have been, that the burden was upon the State to make out its case against the defendant beyond a reasonable doubt, inclusive of his plea of insanity, and inasmuch as the State offered no evidence on the question adequate to the discharge of that burden, the case was with the defendant— nothing short of a formal report of the committee of physicians being sufficient to justify a conviction.

It is stated in brief and argument by defendant’s counsel, that upon the day fixed for the trial, they were surprised to learn that, in point of fact, no examination had been-made by the physicians into the mental condition of .the defendant; but it is a fact worthy of note in '.this connection, that no mention is m'ade of this contention in -the bills of exception, and it is by them- that this court must be .guided in rendering judgment.

In brief and argument much has been said of the pitiable and unfortunate situation of the defendant, which has served to elicit sympathy in his favor; but, in the very nature of this court’s jurisdiction in criminal matters, we could not allow that to change the .judgment of conviction, however .''appealing his situation may be. A different remedy is provided in our Constitution and law, and it must be sought for and applied.

A remedy is suggested in State ex rel. Chandler ex parte, 45 An. 696, which might be available to the deferidant in this case. In that, ease the suggestion of the defendant’s irisanity was made after his-conviction, and in the course of our,opinion we said:

“We think the judge was authorized under that section”-Revised Statutes, Sec. 1768—“upon the report of the physicians to-direct an investigation as to the mental condition of the relator, and to engraft the proceedings for that purpose upon the case of Chandler then in court. We think the judge authorized, in the absence of a direct mode of procedure being enacted by that section, to mould the proceedings to correspond with the methods of proceeding resorted to for the purpose of the trial of analogous issues, and we see no just ground of complaint that the issue 'should have been submitted to a jury instead of a court.” '

In State ex rel. Armstrong vs. Judge, 48 An. 583, an application was made to us by the relator, after he had been convicted of murder and sentenced to death, to compel the respondent to submit the issue of his sanity to trial by jury as a criminal cause — alleging that-he had applied to the Board of Pardons for a respite from sentence until his sanity could be inquired into.

We merely cite those decisions as indicating a remedy that may possibly be available to the defendant; not as, in any way appertaining to the decision in the instant ease. ¡

There is no alternative left us but to approve of the findings of the trial judge.

judgment affirmed.


source: Caselaw Access Project

author: Watkins, J. Breaux, J. Miller, J.

license: Public Domain

text:
    No. 12,331.
    Succession of Richard H. Allen.
    The expression in our former opinion, that the net proceeds of the crop of 1804 should go to Mrs. Bettie Allen as special legatee, was the result of the interpretation it placed upon the testament of the deceased, and it contemplated the result of the administration of the executors alone. Hence,the expenses to he deducted from the gross proceeds of same were those which were incurred after the testator’s succession had been opened by his death. '
    Money collected from the United States Government under the act of Congress of March 2, 1895, was a gratuity or beneficence granted under the stipulations contained therein, and predicated upon prior compliance of the testator with the conditions imposed by the terms of the act of July 1, 1891 — the first bounty act of the government — prior to its repeal on the 28th of August, 1894; and, the the testator having died in September after the repeal, there was no claim thereto in esse, which devolved upon the special legatee of the crop as an incident thereof.
    The three nieces of the testator, who were disinherited by the terms of the will, are not entitled to participate with other legal heirs in the distribution of the bounty money, because same constitutes part of the residuum from which they vere excluded by our former decree.
    A judgment which homologates a provisional account and tableau of distribution constitutes a bar to subsequent inquiry, and’ serves as a foundation for the plea of res adjudicata.

    Breaux, on Rehearing — The testator to the date of his d eatli was the cultivator and producer of the crop.
    Ilis heirs are entitled to a portion of the bounty equal to the interest of the cultivator and producer of the cane.
    The widow and legatee was the owner of one-half of the plantation, paid the expenses of the crop after the testator’s death, and was after that date the producer, and entitled as such to a proportionate share of the bounty money.
    On this basis it was decreed that the legal heirs should receive one-lialf as an unwilled portion.
    The other half to the widow and legatee.
    APPEAL from the Eighteenth Judicial District Oourt for the Parish of Lafourche. Caillouet, J.

      Beattie & Beattie (JF. Pierson, of Counsel) for Mrs. Bettie Allen •and William E. Collins, Executors, Appellants; Clay Knobloch & Son for Ogden Smith, Executor, Appellant; L. F. Suthon for Ogden ■Smith, T. A. Smith, Gaston Smith, Fred. W. Smith and Mrs. Nellie Houchens, Opponents, Appellants; Fenner, Henderson & Fenner, Thomas A. Badeaux and L. F. Suthon for Succession of Thomas H. Allen, Opponent, Appellee; Henry Chiapella for J. B. and W. A. Turner, Opponents, Appellees; E. B. LeBreton and L. De Poorter for Mrs. Bettie De Berry, Mrs. Ellen B. Baker and Mrs. Jennie Boyle, ■Opponents, Appellees.

      Argued and submitted January 5, 1897.
    Opinion handed down April 12, 1897.
    Rehearing granted May 10, 1897.
    Argued and submitted on rehearing June 4, 1897.
    Opinion handed down on rehearing June 14, 1897.
   The opinion of the court was delivered by

Watkins, J.

This litigation is supplementary to and grows out of a previous opinion of this court, which was rendered in a suit of same title as this, and which is reported in 48 An. 1036; and to which we refer for a complete statement of the issues involved and the conclusions at which we arrived, the chief purpose and object thereof being to determine the scope and meaning of the will of the deceased.

' The following extract from our opinion in that case will illustrate, to a certain extent, the scope of the‘present controversy, namely:

“The succession is in no condition.'for final settlement. . The crop of 1894 has not been disposed of, '.and the" sugar bounty claim is uncollected * * * The judgment appealed from is so amended as to give Mrs. Bettie Allen the net proceeds of the crop on the Rienzi plantation for the year 1804, and 'one-half the plantation; and one-fifth interest in same to each of the families,” etc., enumerating them.

In all other respects the judgment appealed from was affirmed.

But, on the application for rehearing, the court made this explanatory statement, viz.:

“ The applicants have misunderstood our decree. It does not say, nor was it intended to convey the impression, that the funds ready for distribution should be withheld from those entitled to the same under the will. The succession is to be continued in its administration until the payment of the bounty, when it will be distributed according to law. All funds ready for distribution must reach their destination without unnecessary delay.” (Our italics.)

In that condition the cause was remanded to the lower court for further proceedings, and final settlement, in conformity to the views therein expressed.

When the cause went back to the lower court, the executors, W. F. Collins, and Mrs. Bettie Allen, joined in the preparation and filing of a final account, but Ogden Smith, the third executor, disagreeing with the two first named, with respect to what was the correct interpretation to be placed upon our opinion, filed a separate final account of his own, in which he made a distribution different from that proposed by his associates.

These two final accounts resulted in sundry oppositions, the disposition of which is the subject of the present appeal.

The questions at issue can be most correctly stated, and more understandingly apprehended, by premising our recapitulation of them by a resumé of the District Judge’s views, as they are set forth in his reasons for judgment, and, for that purpose, the following extracts therefrom will suffice, namely:

“ By an agreement of record, the two accounts are to be taken as answers, or oppositions to each other, and the whole matter is to be considered and disposed of in one decree.
All the (legal) heirs have filed oppositions to the final account of W. F. Collins and Mrs. Bettie Allen (executors), opposing (their) distribution of the bounty money (to the latter), alleging that it formed no part of the crop of 1894, or of the proceeds thereof, and is unwilled, and (further) seeking to charge her with the portion of the expense of the crop of 1894 incurred prior to the death of (the testator), and also with the deficit of the crop of 1895.

He then states that all of the heirs except three concur in the account filed by Executor Ogden Smith, and pray for its homologation, while the three heirs excepted oppose that portion of same in which it is proposed to leave them out entirely in the distribution of the bounty money, alleging themselves to be entitled to an equal distributive share thereof.

Then follows this statement, viz.:

“The only questions before the court are questions of law, and the first one is, does Mrs. Allen get the proceeds of the crop of 1894, after deducting the expenses incurred by the executors, after the death of the testator, in saving the crop; or must the expenses incurred prior to-the death of the testator be also deducted. (Our italics.)
$ * * * * *
“ As a general 'proposition ’ ’ — that the net proceeds are what remains after deducting all the costs of production — says the judge, “ this is-undoubtedly correct; bub the expression of the Supreme Court in reference to the net proceeds of the crop in this case must be taken in conjunction with the provisions of the will on the subject; and be construed in the light of such provision..!’

He then observes that the account of Ogden Smith, executor, then before the court, made reference to the net proceeds of the crop of 1894, and proposed to distribute same among all the legatees, “ provided said legatees shall reimburse to the estate (the) expenses incurred to make and save said -crop since the death of the testator * * * amounting to nineteen thousand seven hundred and thirty dollars and twenty-six cents;” and then stated that, in passing upon that issue he adopted that view of the matter, and that it was when commenting thereon, that this court used the expression “ net proceeds,” and decreed Mrs. Bettie Allen entitled to same under the terms of the will.

“ But the question (as to) what are the net proceeds,” says the judge, “ beyond what was presented by the pleadings, was not passed upon by the court.

“ The clause of the will under which the court gave the crop of 1894 to Mrs. Allen is in these words, viz.:

1 As I fear property will be very low, I give my executors five years to work for a good price. In the meantime that they are waitiug to sell, the place can be rented or worked so as to pay all taxes and other charges; any over that to go to Mrs. Bettie Allen’s credit.’
“This language is plain and unambiguous. It provides for the future renting or working of the plantation to pay the taxes and charges incurred by the plantation while so rented and worked; and that the surplus of the rental or proceeds of (the) crop were to-be turned over to Mrs. Allen. But it does not provide for or contemplate the payment of the debts contracted by the testator himself prior to his death, whether for making the crop or not. The will speaks for the future and directs what the executors shall do in the management of the plantation, namely: rent or work it so as to raise revenue to pay the taxes and charges while waiting for a better price, and to turn over whatever profits are made in thus renting or working it to Mrs. Allen.”

After an explanatory statement, the judge adds:

“The language of the will too plainly provides for the future to. admit of charging up against the crops, debts contracted and in great bulk paid prior to his death. It is clear to my mind that the-■only charges against the crop of 1894 [which are to be deducted from the gross proceeds] are the expenses incurred in saving and preparing the crop for market, fixed in the first tableau of executor Smith * * * at nineteen thousand seven hundred and thirty dollars and twenty-six cents; and such further sum as may have been incurred in selling the property,” amounting to two thousand seven hundred and sixty-six dollars and thirteen cents.

He leaves out of consideration the question of the deduction of State and parish taxes, which the opponents claim should also be deducted from the gross proceeds of the crop of 1894, because, in his opinion, they are covered by the plea of res judicata, same having been proposed for settlement on the first account, to be paid from the general assets and funds of the estate, and the judgment ordering the same to be so paid not having been disturbed by the decree of this court.

The judge then addressed his reasons to the claim of the executors, Collins and Mrs. Allen, to the effect that the deficit of nine hundred and sixteen dollars and nineteen cents on the crop of 1895 should be paid from the unwilled assets of the estate, going to the legal heirs, on the theory that Mrs. Allen never consented that the plantation should be worked and operated for her account in 1895, and then to the contention of the executor, Smith contra, and that of the legal heirs, chat this deficit must be paid out of the crop ■of the previous year, 1894.

With regard to this proposition, the judge says:

“ I think the contention of the latter' is well founded. The (provision of) the will already quoted, contemplated that the place should be rented or worked by the executors, .pending sale, and while waiting for a good price, in order to pay the taxes and other charges on the place, and that the surplus realized at the close of operations should be put to the credit of Mrs. Allen.”

Dismissing the question of “neb proceeds” with these ample remarks, he passed to the consideration of the bounty money,” and on that question he says:

“ I am clearly of the opinion that the bounty money forms no part of the crop proper, or the proceeds thereof. Though based on the crop as a means of calculation, and conditioned on the production of the crop by the owner ofjthe plantation under certain rules, it was a pure gratuity from the government.
“ It does not, therefore, go to Mrs. Allen under the will, but to the heirs as an unwilled portion.”

He then says that the three legal heirs to whom no legacies were made in the will, other than the sum of five hundred dollars each, claim their shares in the bounty money, on the ground that it was a gift from the government, made after the death of the deceased, and, consequently, did not fall into his succession, but passed to the legal heirs of the deceased, directly.

The judge then says:

“ The bounty was given after the death of the deceased, but conditioned on his prior fulfilment of certain prerequisites prescribed by the McKinley bill; but the license was obtained, and the equitable claim in payment of which the allowance of the government was made had been granted prior to the death of the testator. The gift was to the testator, or his estate, and not to his heirs, and, consequently, formed a part of his estate.
■ “ The three opponents named are not entitled to participate in the distribution, having been cut out by the terms of the will; and the bounty money, after deduction made of costs of collecting same, three hundred and twenty-one dollars and seventy cents, and the executor’s commissions therefor, ninety-six dollars and forty-one cents — equal to four hundred and eighteen dollars and eleven cents —must be distributed among the remaining heirs.”

He then makes the following statement as the basis of his judgment, viz.:

“ From gross proceeds o£ crop of 1894 . ' $56,072 58
“Deduct expenses incurred since the death of testator, fixed at. 22,496 39'
“ Leaving balance of.:. $33,576 19
“ Deduct deficit on crop of 1895, as fixed in account of Smith, executor, and established by evidence.J. $748 19
and executor’s commissions. 725 '39— 1,473 58
“ Net proceeds of crops of 1894 and 1895. $32,102 61
“ But she must restore amount already drawn and due to estate by her 3,725 22
“ Balance due Mrs. Allen “ and to be paid her out of proceeds of crop.”... 28,377 39

“ Considering that the said account makes a correct showing of the unwilled cash, and of the payments of the legacies and of the debts under the judgment heretofors rendered, except as to the item of reserved costs, two thousand and seventy-two dollars and forty-three cents, the item of amount due by Mrs. Allen, and the bounty, it. is ordered and decreed that said final account of the executors, Mrs. Allen and W. F. Collins, be and the same is approved and homolo- ■gated, except in so far as hereinabove amended, and as hereinafter amended as to the items just named.

“ It is further ordered and decreed that as to these items the said account be reformed and recast as follows, to-wit:

•“Amount reserved for costs, as stated in said account. $2,072 43
“Amount recovered from Mrs. Allen. 3,725 22
“Amount recovered from bounty. 11,569 35
“ Total . $17,367 00
“ Deduct tliex-efrom costs attending collection of bounty. $321 10
■“Executor’s commissions. 96 41
“ Reserved for future costs.. 300 00— 748 81
“ Balance. $16,618 19 ”

Then follows the distribution amongst the heirs, which it will be unnecessary to detail.

From this judgment the following parties appealed, viz.: The Smith heirs and the executors, Mrs. Allen and W. F. Oollins.

In this court appear Mrs. Jennie Boyle, Bettie De Berry and Allen Baker, as appellees, and make answer to the appeal of the executors, and aver that the funds received by them from the government of the United States under act of Congress in the latter part of March, 1895, was not due to R. H. Allen, nor to his estate at his death, and forms no part of the assets of said estate, nor of the residuum thereof.

That the said R. H. Allen, at the date of making his will, and at the date of his death, had no claim against the government which he could have enforced, or could have been enforced by his executors, subsequently.

That the distribution of said funds is not governed by the provisions of the will of the deceased, but descends directly to the opponents as heirs, and is simply held in trust by the executors.

“That the clause in the will of said deceased, which has been heretofore construed as excluding opponents from participation in the unwilled property of the testator, has not concluded them beyond the residuum of the estate such as it was at the date of the death of said testator; that their capacity of heirship and their right to demand and receive from gratuities created by the government under special laws enacted after the death of the testator has not been destroyed.”

Therefore they prayed that the judgment appealed from be so amended as to maintain their opposition to the final account of the •executors.

The administrator of the succession of Thos. H. Allen as appellee filed an answer to the appeal of the executors, Mrs. Allen and W. F. Oollins, and prayed for an amendment of the judgment appealed from, “so as to deduct from the gross proceeds of the Crop of 1894 all the expenses of making the said crop, including those preceding the death of the testator,” as well as those which were incurred by the executors in its administration and management, after his death.

The opponents, J. B. Turner and W. A. Turner, also appear as appellees, and make the following answer to the appeal of the executors, viz.:

That the judgment appealed from should be affirmed to the extent that it distributes the bounty money*equally between the three sets of heirs at law, excluding those from participation therein who were excluded by the express terms of thejvill. .

That said judgment is also correct in so far as it distributed among the three sets of heirs at law not e-xcludecj by the will the amount reserved by the executors in prior settlement, the amount of payments made to heirs on account, and;; the further sum found due by Mrs. Allen for moneys drawn in advance.

But, they aver, that in other respects the said judgment is erroneous, and should be modified and amended and made to conform to final account of the co- executor, Ogden Smith.

That said judgment is particularly - erroneous in not having ordered to be returned to the residimm of the estate the sum of four thousand four hundred and seven dollars and seventy-nine cents paid by the executors in making the crop of 1894 after the death of Richard H. Allen, from the general mass of the estate, and from the unwilled cash which belonged to the heirs at law at the date of his death * * * and out of the crop of 1894.

Also, that said judgment is erroneous in the further particular that it- failed to order returned to the general mass of the estate all expenses incurred in 1894 to make the crop of that year, and particularly the sum of twenty-two thousand- eight hundred and thirty dollars paid and expended by the testator, during his lifetime.

Also, that it is erroneous in having sustained the plea of res adqu-dicata; and in some other minor particulars.

From the foregoing synopsis of the reasons for judgment, and of the pleas of opponent, we take the questions for our decision to be the following, viz.: *

1. Whether the account of Mrs. Allen and W. F. Collins, executors, awarding Mrs. Bettie Allen the net proceeds of the crop of 1894, less the expenses of its cultivation and manufacture which were incurred by the executors subsequent to the death of the testator, should be approved; or should the theory of the opponents that she be only allowed the net proceeds thereof, after deducting all expenses incurred during the entire year, be maintained?

2. Whether the aforesaid account awarding the “ bounty money ” to Mrs. Bettie Allen, as special legatee under the will, on the theory that it formed a part of the net proceeds of the crop of 1894 on the Rienzi plantation, should be approved ; or should the theory of the opponents, to the effect that same formed no part of the crop, nor of the proceeds thereof, but, on the contrary, constituted an unwilled asset of the testator, which at his death passed directly to them as the legal heirs of the residuum of his estate, should be maintained?

■ 8. Whether the contention of the three nieces who were disinherited by the will, to the effect that they are entitled to a share in the “bounty money,” on the ground that it was a gift from the government made after the testator’s death, and, consequently, did not fall into his succession nor constitute a part of the residuum thereof, but descended to the legal heirs directly, should obtain: or, is the contention of the legal heirs — if the bounty money be decided not to go to Mrs. Bettie Allen as special legatee — that said nieces are cut off by the terms of the will and entitled to no share therein, correct, and should it prevail?

4. Whether the said account proposing that the deficit of seven hundred and forty-eight dollars and nineteen cents on account of the crop of 1895, which was made and gathered under the superintendence of the executors, should be paid from the unwilled assets of the estate going to the legal heirs, on the theory that Mrs. Allen never consented that the plantation should be cultivated for her account, should be approved, or should it, as the legal heirs contend, be paid from the proceeds of the crop of 1894, going to Mrs. Bettie Allen as special legatee?

5. Whether the amount claimed in reimbursement of taxes paid on real estate of the testator are covered by the former account and concluded by the plea of res adjudieata filed by Mrs. Allen and W. F. Collins, executors; or is same open for examination and judgment on the final account before us?

In addition to the foregoing the attorneys of Mrs. Bettie Allen,, special legatee, object to the charge of seven hundred and twenty-five dollars and thirty-nine cents, amount of the commissions of W. F. Oollins, executor, being deducted from the net proceeds of the crop, of 1894, insisting that the same is a charge against the legal heirs, and not against her as legatee:

We will take these propositions without regard to the order they were taken in the argument or presented in the foregoing rgsumé.

I.

What is the true meaning and import of the phrase employed in our opinion, the net proceeds of the'crop?'”

In our opinion in the former case »simply said:

“ The judgment appealed from is so amended as to give Mrs. Bettie Allen the net proceeds of the crop of 1894,” etc.; but the clause of the will which superinduced' -that interpretation was the following, viz.:
“As I fear property will be very low I give my executors five years to work for a good price. In '.the meantime that they are waiting to sell, the place can be rented or worked so as'to pay all taxes and other charges; any over that to go to Mrs. Bettie Allen’s credit.”

As the judge a quo observed, this language evidently pointed to and provided for the future, and it had.no effect until the testator’s death. When the will was made.the time of the testator’s death was unknown; consequently no time when it would go into effect could have been fixed or contemplated. Hence, the testator gave general directions to the executors of his will as to the manner in which they should conduct and manage the-'estate when it should come under their control after his death. In view of the fact that the price of property was ruling low at the time he made his will he gave them a period of five years within which to make sale of his plantation; and, further providing for the contingency of delay in effecting a sale, he authorized them to either rent or work same so as to pay all taxes and charges. And in this connection the testator declared that “ any over that (should) go to- Mrs. Bettie Allen’s credit:”

To our minds the conclusion is clear that the will contemplated and dealt with the renting or cultivation of the -plantation after the •death of the testator, and during such a period of time as it might remain under the administration of the executors pending sale. That as a necessary consequence the taxes and other charges to which the testator referred were those to be incurred during their incumbency; and it is therefore obvious that it was the resulting balance, after their deduction, that the testator desired his surviving widow should have.

He contemplated that those planting operations might continue for five years; and should that have been the case she would have been ■entitled to the resulting balance of each year’s operations. But the date at which the expenses were to begin was evidently that at which the administration of the executors commenced; and only those incurred during their administration should be deducted from the proceeds of the crops in order to ascertain the net balance thereof, including the expense of making the sale.

It is to the terms and conditions of the testament that our previous opinion relates, when it mentions the net proceeds of the crop of 1894; and not to the net proceeds of a crop, taken in the ordinary acceptation of the term.

Had the testator intended that the expenses he had incurred, during his lifetime, should be deducted or accounted for, as debts and ■expenses of the crop, he would have doubtless made some definite statement in his will to that effect. But he did not do so.

Our conclusion is, that in this respect the account of the executors, W. E. Oollins and Mrs. Allen, is correct.

II.

The foregoing argument, in our opinion, disposes of the question of the deficit on account of the crop of 1895, as it was cultivated and manufactured under che superintendence of the executors; and it necessarily followed the destination of the same provision of the will as the proceeds of the crop of 1894.

As the crops grown on the plantation pending the sale were, by the mandate of the will, to 'be turned over to Mrs. Allen, as a particular legatee, after all expenses were paid, the legal heirs must be relieved of the burdens it has occasioned.

■It follows, necessarily, that this deficit is not a charge against the ■unwilled portion of the testator’s estate; and for the same reason it is not a charge against the general estate.

In this respect, our conclusion is, that the account is erroneous.

m.

The claim for bounty had not been collected when the succession was last before us. Tt was a gratuity from the government, notwithstanding it was based upon an estimate of the crop, as a means of calculation, and predicated upon the'production of a crop by the ■owner thereof, under rules and regulations which were established by the treasury department.

The allowance of the bounty was, by the government, conditioned on the fulfilment by the deceased of certain prerequisites, though payment of it was not made until after his death, and subsequent to the filing of the executors’ provisional account.

The equitable claim of the deceased to the bounty had been created during his lifetime, and the license obtained, and all conditions precedent had been complied with-; though no mention of it was made in the will.

It seems quite clear to our minds that the bounty money which was collected from the government by the executors formed no part of the crops of 1894 and 1895, nor of their proceeds. It was not in esse at the time those crops were grown and gathered.

The executors did nothing but make the necessary proofs preparatory to its collection and receive payment of the money. It must, consequently, be classed as an unwilled asset of the deceased, and not as part of the net proceeds of .the crop of 1894, passing, under the will, to Mrs. Bettie Allen.

The legal principle involved is res nova in a great measure, and ■but few authorities applicable thereto are available.

In Delogny vs. Creditors, 48 An. 488, there was a somewhat similar question discussed and decided. In that case the judge a quo had ordered that the bounty money should be applied to the credit -of a mortgage the insolvent had given to his commission merchants, and of this part of his decree we said:

As relates to the pledge the facts are that the mortgagor bound ■himself to pay the bounty of the government to the creditor immediately after the receipt of the amount, just as if the bounty had been a portion of the proceeds of the plantation * * *
“ The bounty was not delivered at the time the attempt was made to pledge it as an additional security for the debt. It was collected from the government by the syndic some time after the act of mortgage had been executed. It is hardly necessary to cite authority in support of the proposition that delivery is an essential to secure a pledge * * *
“ The bounty was not a portion of the proceeds of the crop; it was no part of the crop.
“We know of no principle of interpretation under which it is-possible to hold that the bounty was delivered as required, and came within the provisions of the statute relative to pledge as a security.’’

Taking that case as an illustration it necessarily results from the argument that the bounty did not, in the instant case, constitute a part of the crop. As it did not constitute a part of the crop of Delogny, possession of which passed to his mortgagee as a pledge; so in the instant case the bounty did not constitute a portion of the surplus of the proceeds of the crops of 1894 and 1895, over and above their expenses, which passed by the will to Mrs. Allen; or, in the language of the District Judge, “it does not go to Mrs-Allen under the will, but to the heirs as an unwilled portion.”

The history of congressional legislation on the question of revenue and bounty on sugar confirms us in the correctness of this conclusion.

By the act of October 1, 1890, known as the tariff act, it was declared that, from and after the 1st of July, 1891, and until the 1st of July, 1905, there shall be paid ‘ ‘ to the producer of sugar * ,* * a bounty of two cents per pound * * * under such rules and regulations as * * * the Secretary of the Treasury shall prescribe.”

The condition prescribed was that “ the producer of said sugar, to be entitled to said bounty, shall have first filed prior to the first of each year, with the Oommissioner of Internal Revenue, a notice of the place of production . * * * with an estimate of the amount of sugar proposed to be produced in the current or next ensuing year * * * and an application for a license to so produce, to be accompanied by a bond in a penalty, and with sureties, to be approved * * * conditioned that he will faithfully observe all rules and regulations that shall be prescribed for such manufacture and production of sugar.”

The act further provided that “the Commissioner of Internal Revenue, upon receiving the application and bond hereinbefore provided for, shall issue to the applicant a license to produce sugar,’” but for a period of one year only.

And further, that for the payment of the bounty “ the Secretary •of the Treasury is authorized to draw warrants on the Treasurer of the United States for such sums as shall be necessary,” etc.

On the 15th of August, 1894, another act of Congress was received by the President, and, in default of his approval, became a law on the 29th of the month; the purpose and effect of which was to repeal the previous bounty provisions of the revenue law, and make it “ unlawful to issue any license to produce sugar, or to pay any bounty for the production of sugar of any kind under said act.”

In this condition the question remained until the Congress passed ■another act, bearing date March 2,1895, making appropriations for sundry civil expenses of the government for the fiscal year 1896, which, amongst other things, provided that there shall be paid by the Secretary of the Treasury to those producers and manufacturers of sugar * * * who complied with the provisions of the bounty law * * * a, bounty of two cents a pound on all sugars * * * manufactured and produced by them previous to the 28th of August, 1894, and upon which no bounty has been previously paid,” etc.

That act further provided that the bounty herein authorized to be paid shall be paid upon the presentation of such proofs of manufacture and production as shall be required in each case by the Commissioner of Internal Revenue, with the approval of the Secretary of the Treasury, and under such rules and regulations as shall be pre - scribed,” etc.

From the foregoing extracts from the laws of Congress on the subject, it appears that a bounty on sugar was first granted to take effect on the 1st of July, 1891, and that the law remained in force until the 28th of August, 1894, when it was unconditionaliy repealed and ceased to have any effect.

In the month of September, 1894, the testator died; consequently, when his testament was probated and went into effect by the qualification of the executors therein appointed, whatever claim the testator had prevously, to the bounty, had been completely annihilated by the repeal of the bounty law, and no right or claim thereto passed to Mrs. Allen as special legatee and beneficiary of the “net proceeds ■of the crop of 1894.”

And when in March, 1895, the second bounty act was passed, which gave to those producers and manufacturers of sugar who had complied with the provisions of the first bounty law, a bounty of two cents a pound on all sugars manufactured and produced by them previous to the 28th of August, 1894,” the crop of 1894 had been gathered and sold.

On this statement it seems evident that the avails of the bounty received a destination specially indicated in the act of Congress ; that is to say to those persons who had complied fully with the provisions of the former bounty law; and who had produced and manufactured the sugar previous to the repeal of that law, on the 28th of August, 1894.

When the executors took charge of the estate, the bounty law was repealed; and all they did subsequently was to comply with the rules and regulations specified in the latter act, and collect the money conformably thereto.

When collected it passed into their possession and custody, as an unwilled asset of the deceased, and must pass to the account of the legal heirs; this, of coarse, results in charging to the general estate all the expenses that were incident to the collection of the bounty claim in 1895, as well as those which were engendered in 1894, preparatory to its collection, prior to the passage of the repealing statute.

We understand this to be the purport of our opinion in Webre vs. Beltran, 47 An. 202, and of the United States Court of Appeals in Calder vs. Henderson, 2 U. S. Appeals, 627. In the former case the government issued a license to Beltran as a creditor and that entitled him subsequently to collect the bounty.

As explanatory of the position of the government in respect to bounty, vide United States vs. Realty Company, 163 U. S. 427.

In this respect we are of opinion that the account of the executors, W. F. Collins and Mrs. Allen, is erroneous.

IV.

Whether the three nieces who were excluded from participating in the residuum,, or unwilled portion of the estate of their ancestor, should participate in that portion of it represented by the sugar bounty, depends solely upon the response we make to the proposition which is stated by their counsel in his answer to the appeal, viz.: That the bounty money was a gift from the government, that was made after the testator's death, and for that reason it did not pass into his succession, nor constitute a part of the residuum thereof; but, on the contrary, descended to the legal heirs of the deceased directly.

We are not aware of any such an intermediate stage of inheritance as counsel’s theory supposes.

The law declares that “ the succession * * * becomes open by death.” R. O. C. 934.

That “ a succession is acquired by the legal heir * * * immediately after the death of the deceased person to whom he succeeds.” R. O. O. 940.

That “ the succession not only includes the rights and obligations of the deceased, as they exist at the time of. his death, but all that has accrued thereto since the opening of the succession,” etc. R. O. 0. 873.

From tbe foregoing provisions it is clear, that all the unwilled assets of the deceased, including the bounty money, fell into the' succession, or general estate, whether same were in esse at the time of the ancestor’s death, or arose into existence subsequently, and constituted the residuum, from participation in which the three disinterested legal heirs are precluded.

In this respect we think the account of the executors, W. F. Oollins and Mrs. Allen, is, also, erroneous — it having attributed the bounty money to Mrs. Bettie Allen, and this controversy being an ingredient thereof.

V.

We think it clear, that the disputation about taxes is cut off by the plea of res judicata tendered by the executors, W. F. Oollins and Mrs. Allen, same having figured on the provisional account previously filed and homologated; and which passed under review in the former decision of this court.

That was not only an account but a partial tableau of distribution,, and the item of taxes now agitated was thereon placed, allowed and paid in pursuance of the judgment of the court.

Such a judgment is final, and conclusive against heirs, legatees, and creditors; and operates the bar of res adjudicata.

Succession of Conrad, 45 An. 89.

YI.

We note the contention of the executors, W. F. Oollins and Mrs. Allen, to the effect that commissions of the executors have been erroneously taken into the calculation of the judge a quo as part of the expenses of the crops of 1894 and 1895, and deducted therefrom in finding the net proceeds thereof. They contend, that the executors’ commissions constitute a charge against the general estate of the deceased t,o be ascertained upon the face of the inventory; and that same can not be legally charged against the allowance going to legatees. In other words, that legatees must be paid in full.

Recurring to the statement we have already quoted from the reasons •of the judge a quo for judgment, we find amongst the charges that he deducted from “the gross proceeds of the crop of 1894” the “executors’ commissions, seven hundred and twenty-five dollars and thirty-nine cents.” That item must refer to executors’ commissions ■on the general estate, because their commissions for the collection of the bounty money were fixed at ninety-six dollars and forty-one cents, and deducted therefrom separately.

The claim of counsel for the executors appears to be well founded in this respect; and the account should be so altered as to conform thereto.

VII.

We have dealt with the account of the executors, W. P. Collins and Mrs. Allen, as it appeared to furnish the better foundation on which to formulate an opinion than that of Executor Ogden Smith— •the latter being practically the foundation of the claim of the legal heirs.

A careful consideration of the case in all its bearings has satisfied •our minds that the judge a quo gave it his careful consideration and reached a correct solution of the controversy in all particulars, except that appertaining to the executors’ commissions.

In that respect the decree should be amended.

It is therefore ordered and decreed that the judgment appealed from be so amended as to tax the general estate with executors’ ■commissions in the amount of seven hundred and twenty-five dollars and thirty-nine cents, and to place a corresponding sum to the credit of the net proceeds of the crop of 1894 which are attributable to Mrs. Bettie Allen as special legatee; and that, as thus amended, the same be affirmed — all costs to be taxed against the general estate.

On Application por a Rehearing.

Breaux, J.

Only one issue remains for further consideration.

The rehearing at this time confined the question to the bounty money.

The end of the bounty was to encourage the production of cane.

It devolved upon us to determine by whom the cane was produced.

In our judgment, after carefully reading the act, it is evident that the producer was to be the first to receive the benefit of the bounty.

It devolved upon him, in order to recover the bounty, to comply with certain formalities.

The act (although it includes the manufacture of cane into sugar as one of the essentials) places the manufacture of the sugar in matter of the bounty scheme in a secondary position.

In other words, in our view, production was a first, and manufacture a secondary, consideration.

Bach, however, was essential in order to enable the producer to recover the bounty.

In order to determine who was the producer we have had to consider questions of title and of ownership.

To the date of the testator’s death on September 19, 1894, the plantation had been his property; the crop had been planted and cultivated by him, and all expenses to that date were paid from his funds. The value of the crop, at that date, he had earned: he had also earned a proportionate share of the bounty, not because the bounty was part of the crop, not because it Was part of the proceeds, but because the bounty was granted to the producer of the crop.

In determining who was the producer it was not possible to exclude from all consideration the labor applied under the direction of the owner, and the amount expended by him.

The legatee here claiming assisted after the date just stated in producing the crop, but she was not the exclusive producer from the first, and she, therefore, is not entitled to the whole bounty of the government granted to the producers who produced an entire thing, a crop.

After having decided that to the date already mentioned the testator was the producer, we applied ourselves to ascertain by whom this producer was succeeded as a producer; whether it was Mrs. Bettie Allen as legatee or the legal heirs.

We must meet the fact, for it is plainly written in the will of the testator that she was thelegatee of one-half of the plantation. There was, it is true, qualification or limitation in matter of the right to one-half. '

It remains that she was the owner of one-half of the place. If we were to stop here this would limit the interest of Mrs. Allen, as a producer, to one-fourth of the crop; that is, if we should consider that the ownership of one-half of the plantation was of itself enough to prove that she was the producer. We do not think it was.

But there are other clauses of the will which, in our view, extend her right and show that she was the producer after the death of Mr. Allen. She paid all the expenses of the crop; she was to receive the proceeds under the terms of the will; indeed she was the owner of the crop. She can well be considered, as we think, the producer after the death of her husband.

We desire it to be well understood that in our opinion the bounty money -is no part of the crop or the proceeds of the crop. The question was, in this case, who was the owner and producer of the crop, after the death of the testator. We adhere to the case of Delogny vs. Her Creditors, 48 An. 488. In that case, as in the case before us, the owner was the producer of the crop, but she, Mrs. Delogny, in pledging the crop, had not pledged the bounty granted by the government.

Having settled upon this, as our view of the point, we must determine the relative value of the interest of each producer.

We deem it in place to state that in ascertaining these values, we calculated upon the basis of round numbers in support of a general conclusion and not upon the basis of figures given to establish an absolute accurate balance; we think none the less our basis is correct enough to sustain our judgment in the matter.

It is well known everywhere in Louisiana, at any rate, that the labor and expense of cultivating a cane crop are about at an end on the 19th of September. The cane has been cultivated and laid by; the crop is left to the fertility of the soil, the fall of the sunbeams, and to the soft architectural hands of the showers.

As an estimate, we believe, that on the well employed plantation, such as we think this was, the cost of cultivation is about equal to the cost of manufacture, and that upon that basis the heirs at law are entitled to one-half of the bounty and the legatee, Mrs. Allen, to the other half.

We have adopted this basis because we think it is fair and just to all the interested parties, and also because it concerns the State and heirs and legatees, that there be an end to lawsuits.

If we were to remand the ease to ascertain with great precision the value of the crop prior to the 19th of September, and the value of the crop after the 19th of September,' corresponding with the interest of each producer, we do not think the result would be more satisfactory and just; besides any difference which might be found would be more than counterbalanced by the unavoidable delay and. expense consequent upon the remanding.

It is therefore ordered and adjudged that the bounty money in controversy be divided equally and that one-half this money be distributed among the heirs as an unwilled portion, and that the other half be delivered to Mrs. Allen, legatee.

With this amendment the judgment appealed from is affirmed at appellees’ costs.

Miller, J.

My view is the bounty money goes to Mrs. Allen and those heirs who with her inherit the Rienzi plantation.


author: Watkins, J.

text:
    No. 12,460.
    Succession of William T. Richards, J. C. Gilmore, Testamentary Executor.
    The estimation of the value of professional services of an attorney at law is only a question of law, and one that comes peculiarly within the province of the judge a quo who superintended the making up of the record upon which same must necessarily depend, giving him a very intimate acquaintance with all of its details, as well as knowledge of the kind and value of what services were performed.
    In such a case this court will accept his estimation as a correct and proper one, in. the absence of any manifest error of judgment on his part.
    A EPBAL from the Oivil District Court for the Parish of Orleans, Monroe, J.

      George F. Lapeyre and J. G. Gilmore (J. G. Hawhes, of Counsel)^ for Testamentary Executor et als., Appellants.
    Farrar, Jonas & Kruttschnitt for Board of Administrators of the Charity Hospital, Opponents, Appellees.
    Argued and submitted April 15, 1897.
    Opinion handed down May 10, 1897.
    Rehearing refused June 19, 1897.
   The opinion of the court was delivered by

Watkins, J.

William T. Richards died in the city of New Orleans on the 19th of May, 1896, leaving an estate which was inventoried at one hundred and sixty-eight thousand seven hundred and thirty-one dollars and eight cents — consisting of improved real estate situated in the city of New Orleans, cash, stocks, bonds and other securities.

The succession was entirely free from debt.

The deceased left surviving, neither widow nor forced heirs; and he disposed of his property by an olographic last will, wherein he made a number of special legacies, and constituted the Charity Hospital at New Orleans residuary legatee.

He appointed Joseph 0. Gilmore sole executor and made a bequest in his favor of two improved lots situated on St. Oharles avenue, carrying an inventoried value of seven thousand five hundred dollars.

On the petition of the designated executor — he being at the same time a practising attorney at law — the will was admitted to probate, letters testamentary were issued to him and he was duly qualified and entered upon the discharge of the duties of his trust.

Subsequently, the executor employed an attorney at law to co-operate with and assist him in the management of the business and affairs of the estate; and said attorney joined the executor and co-operated with and assisted him in the management and administration until the final completion thereof by filing a final account.

There was no litigation in reference to the succession up to the filing of the final account; and the matter of litigation now before us arises upon an opposition on the part of the Charity Hospital, as residuary legatee.

The character and extent of the opposition can be best presented in the following extract from the brief of counsel for the opponent, viz.:

“ The opposition of the Charity Hospital was to nine items of the account, as follows, to-wit:
1. Possible provision for care of tomb. $1,000 00
2. Appraiser’s fees. 300 00
3. Notary’s fees. 1,050 00
4. Auctioneer’s fees. 2,967 14
■5. Clerical wort and preparing the account. 300 00
6. Reserved for the homologation of the account.. 150 00
7.|TAmount retained to be advanced for certain taxes. 550 00
8. Attention and nursing in last illness. 300 00
9. Attorneys’ fees, J. C. Gilmore and George P. Lapeyre. 12,000 00

The further statement of the brief puts the' grounds of opposition very concisely in the following paragraph, viz.:

“These items are opposed as unauthorizéd and excessive, and with respect to the item of attorneys’ fees, for the further reason that the executor being himself an attorney was bound to render such services as were required, the estate being entirely solvent and the proceedings purely formal and not justifying the employment of any other counsel; and that if any fee should be ordered to be paid to such other counsel, then that it should be debited to the executor, personally, in account with the estate, as no services of other counsel were at all necessary.” Pages 3 and 4.of opponent’s brief.

On the trial there was judgment sustaining the opposition in the following particulars, namely:

1. In respect to the provision for the care of the tomb of the deceased, one thousand dollars.

2. Clerical work in preparing the account,"three hundred dollars.

3. Amount retained to cover taxes, five hundred and fifty dollars. .

4. Attention and nursing in last illness, three hundred dollars.

5. So much of the item of attorneys’ fees as may have been intended as allowing a fee to J. C. Gilmore being stricken out and disallowed.

And the following items were reduced as follows, viz.:

(a) Appraiser’s fee of three hundred dollars to thirty-two dollars.

(b) Notary’s fee of one thousand and fifty dollars to five hundred and fifty dollars.

(c) Auctioneer’s fee of two thousand nine hundred and sixty-seven dollars and fourteen cents to one thousand five hundred and fifty-two dollars and forty-one cents.

(d) Amount reserved to cover homologation of account of one hundred and fifty dollars to seventy-five' dollars.

(jb) The amount allowed out of the total sumni twelve thousand dollars awarded on account for the attorneys’ fees is so as to allow George F. Lapayre, attorney, one thousand five hundred dollars.

The decree sustaining the opposition rejected and disallowed the first series of items altogether; and reduced those of the second series so as to conform to the opposition.

From that judgment the executor appeals; and likewise George F. Lapeyre, Phillip M. Gilmore, Mrs. Fanny Thompson and the two^ appraisers, W. Y. Gilmore and T. N. Gilmore.

Answering these several appeals, the opponent affirms the correctness of the judgment of the lower court in all respects except ■one, that is to say as to the amount awarded George F. Lapeyre as ■attorney; and in that respect its contention is that same should be disallowed altogether.

But, in the alternative that any sum is awarded in his favor, that a similar amount be debited against the executor personally.

Our learned brother of the lower court went over the case very carefully in his reasons for judgment, and the record itself was made up in his presence, in greater part — giving him a peculiarly intimate acquaintance with all of its details, as well as knowledge of the kind and value of the services that were performed by the various claimants who figure on the executor’s account.

From the record it appears that the administration of the execu - tor only continued for a period of four months from the time the will was probated to the date of filing the final account; and that during that time only such formal acts were performed by the employed counsel of the executor, as preparing a petition for the sale of the property of the succession for the purpose of discharging legacies and settling the estate; preparing a petition for the homologation of the inventory; one for authority to draw money from bank; one for authority to pay privileged claims; one for authority to extend a mortgage note, and one for special authority to deposit funds in the ■Canal Bank.

In addition to the foregoing there were but few other purely formal acts done by either the executor or his attorney at law.

In oral arguments and briefs, the principal question discussed and impressed upon our attention was that of attorneys’ fees — the correctness of the judgment on other questions seeming, inferentially at least, to have been conceded.

Counsel for opponent concedes that if, in our opinion, anything is ■due in the way of attorneys’ fees, the amount of fifteen hundred dollars, as allowed by the court, is not excessive; and in our opinion, we deem it unquestionable that something in the way of attorneys’ fees is due, notwithstanding the executor is an attorney at law.

We understand that principle to have been settled by this court in the recent case of Fenner, Henderson & Fenner vs. Succession of McCan, 49 An., and to that opinion we adhere.

But, as in every case of attorneys’ fees, the court must deal with the question as one of law based upon a quantum meruit, we will, of course, not tie its decision down by precedents as to amount to be awarded in any given case; but we will appraise the services rendered according to an estimation of value and the circumstances surrounding it.

Taking this view of the matter in hand.,.it is our deliberate judgment that the District Judge entertained a proper appreciation of the services performed and rendered a proper decree.

Judgment affirmed.


text:
    No. 12,442.
    Thomas H. Handy & Co. vs. A. Commander.
    The right to adopt and use a symbol or device to "distinguish the goods or property made or sold by the person whose mark it is, to the exclusion of use by all other persons, has long been recognized by the common law and by the Chancery Courts of England and of this country,
    It is a property right for an infringement of which damages may be recovered in an action at law; and to prevent the continued violation of which an injunction may be resorted to. . . ..
    The trade mark generally, is the adoption of something already inexistence as. the distinctive symbol of the party using it; and the exclusive right grows out of its use and not its adoption.
    Trade mark does not, like a patent or copyright, depend upon novelty, invention, discovery or any work of the brain. It requires no fancy or imagination; no genius nor laborious conception. **
    It is exclusively founded upon priority of 'appropriation. Every one is at liberty to affix to a product of his own manufacture, any symbol or device, not previously appropriated, which will distinguish it from articles of same general nature sold or manufactured by others, and thus, secure himself the benefit of increased sale by reason of any peculiar excellence he may have given it.
    The symbol or device thus becomes a sign to the public of the origin of the goods to which it is attached, and an assurance that they are the genuine article of the original producer.
    In this way it often proves to be of great value to the manufacturer in preventing the substitution and sale of an inferior and different article for his products. It becomes his trade mark and the courts will protect him in its exclusive use.
    The object of the trade mark is to indicate, either by its own meaning or by association, the origin or ownership of the article to which it is applied.
    If it did not, it would serve no usefulpurpose, either to the manufacturer or to the public; and it would afford no protection to either, against the sale of a spurh ous, in place of the genuine article.
    APPEAL from the Civil District Court for. the Parish of Orleans. Ellis, J.

      Ercmlc N. Butler for Plaintiffs, Appellees.

      H. O. Gage for Defendant, Appellant.
    Argued and submitted March 31, 1897.
    Opinion handed down May 10, 1897.
    Rehearing refused May 31, 1897.
   The opinion of the court was delivered by

Watkins, J.

Plaintiffs claiming to be the sole and exclusive owners of a certain trade mark which they adopted in 1893, and have since used to distinguish their Aromatic Cocktail Bitters, and to which they have at all times had the exclusive right of use; and alleging that the defendant has been guilty of an infringement thereof, prayed for a writ of injunction against him and his agents and employees from further using or attempting to use same, directly or indirectly, or any trade mark of similar design or device. They also alleged a resulting injury from said infringement, and prayed for compensatory damages in the sum of two thousand five hundred dollars.

On the trial there was judgment pronounced in favor of the plaintiff for four hundred and fifty dollars damages, perpetuating the injunction, and the defendant prosecutes this appeal, after making an unsuccessful effort to obtain a new trial.

The following extract from the brief of the plaintiffs’ counsel very accurately states their side of the case, and we have adopted it for convenience of statement, to-wit:

“ Thos. H. Handy was carrying on a wine and liquor business in this city, at Nos. 12 and 14 Royal street, for many years prior to 1874, and in connection therewith manufactured and sold an ‘ Aromatic Cocktail Bitters,’ according to a formula which he had purchased from Peyehaud, who remained in Handy’s employ up to the time of his death in 1876. About that time Handy became involved, financially, and required fresh capital for said business, obtained the same from William MeQuoid — who became the real principal of the house — with Thos. H. Handy as his agent, and, thereafter, the business was carried on, at the same place, under the style of ‘Thos. H. Handy, Agent;’ Handy retaining his interest therein until his death, when a new jfirm was entered into, under the style of Thos. H. Handy & Co., composed.of the said William MeQuoid, Thos. H. Handy’s widow, and two clerks who had been employed in the house when the same was conducted in the name of ‘ Thos. H. Handy, Agent.’
“During all of these years the aforesaid ‘Aromatic Cocktail Bitters’ compounded under the ‘ formula ’ which Handy had purchased from Peychaud, was manufactured and sold by Thos. H. Handy, Thos. H. Handy, Agent, and Thos. H. Handy & Oo., under the ‘TRADEMARK,’ which is declared on by plaintiffs in the above entitled suit.
“Defendant, 'Commander, was-in plaintiff’s employ for several years, and while his services were thus engaged and paid for by plaintiffs, he learned the aforesaid ‘ formula ’ for their ‘ Aromatic Cocktail Bitters.’ Commander left plaintiffs’ employ in 1898, and soon afterward set up a rival establishment for the manufacture and sale of their aforesaid ‘Aromatic Cocktail Bitters,’ and put the same on the market, through solicitors and canvassers, under Handy & Co.’s ‘ trade mark,’ and thereby did all in his power to deceive the public into the belief that he was selling plaintiffs’ ‘ Aromatic Cocktail Bitters.’ In size, style, color, lettering and execution, and word for word, not a point of difference exists between the ‘ trade mark ’ of Handy & Co. and the ‘ trade mark ’ thus put forth by Commander, except that the latter is styled ‘ Commander’s Bitters,’ while the former is styled ‘ Handy’s Bitters.’ An inspection of the two ‘ trade marks,’ which are attached to page 15}£ of the transcript of appeal, will show their exact identity with the above exceptions, and will conclusively establish defendant’s palpable and flagrant infringement of plaintiffs’ ‘ trade mark.’ ”

Plaintiffs complain that on account of the aforesaid infringement of their trade mark they found themselves competing with the defendant, as a seller of their own goods, under what appeared, on a casual examination, to be their own trade mark; and which he had thus wrongfully appropriated for the purpose of inducing the belief that the goods he was selling were the aromatic cocktail bitters.

That in a short time they came to realize that the defendant was, by this means, depriving them of a very large part of their trade, as their sales had become reduced from a total of eighty-one cases sold in December, 1893, to a total of twelve cases sold in August, 1894.

The defence was a.general denial.

The defendant’s counsel frankly admits in his brief that “ the evidence proves beyond the peradventure of a doubt that the Peychaud Bitters is the leading and recognized standard bitters in this market, and that the Peyehaud Bitters, Handy Bitters and Commander Bitters are one and the same thing.”

That the formula used is not patented and not proprietary, and that the reputation of the concoction was made in the name of the Peyehaud Bitters — originally prepared by a man of that name.

He further states that said preparation was made and for a long time sold as the Peyehaud Bitters under a label containing the following legend, viz.:

“ Peychaud’s American Aromatic Bitter Cordial. This cordial is the most palatable and flavorous ever yet prepared from aromatic and bitter ingredients, eminently calculated to open the appetite and invigorate the functions of the stomach, and thereby prevent dyspepsia. Dose for adults one to two tablespoonsful before meals in a little sugar and water, or in a little sherry, madeira or brandy if preferred. For children, from one to three teaspoonsful, according to age. Mixed with anisette and a little water it makes a most pleasant stomachic.”

That under this label it attained a great and lasting popularity with the public.

He then represents that Thos. H. Handy became acquainted with the formula, and for several years made the same preparation, which he sold under the name of Handy’s Aromatic Cocktail Bitters, with a legend copied almost verbatim from that employed on the Peyehaud Bitters, to-wit:

“ Handy’s Aromatic Cocktail Bitters. These bitters are the most palatable and flavorous ever sold prepared from aromatic and bitter ingredients. It stimulates the appetite and invigorates the functions, thereby preventing dyspepsia. A teaspoonful to be taken either with sherry or madeira, or if preferred, with a little anisette or brandy, with or without water, which thus makes a very light and pleasant tonic.”

He then alleges that the bitters thus labeled, Thomas H. Handy sold in competition with Peyehaud until the time of his death.

Then follows the following important admission, viz.:

“ Anthony Commander, the defendant in this suit, who also knew the formula by which the Peyehaud Bitters ’ were made, determined to go into the business of manufacturing and selling bitters on this market in competition with the ‘ Peyehaud Bitters,’ and began selling his product in April, 1894, under a label similar in wording to that of the Handy people, but stating clearly thereon that it was * Commander’s Aromatic Cocktail Bitters,’ prepared by A. Commander, sole proprietor, and never sought to induce any one to believe that he was selling Handy’s bitters, but sold them on their own merits, as his own bitters, claiming and stating to the trade that they were iully as good as the ‘ Peychaud Bitters; ’ and much cheaper.
“He employed popular and energetic salesmen, spending his money liberally, and pushed the sale of his bitters from April 1, 1894, to August 81, 1894, when the present suit was instituted and the injunction sued out.”

We append the fao simile of the two trade marks of Thomas H. Handy & Co. and of A. Commander, for the purpose of making the comparison between them, viz.:

From a casual inspection it is readily perceived that the two are identical in design and phraseology; and only differing in the name of the proprietors, and their respective places of business.

The testimony is brief and generally consistent; but as our learned brother of the District Court has made a very careful analysis of it, we have chosen to reproducé the same in its entirety as the mos't accurate statement of the case of which it is susceptible, viz.:

“On the proofs made there can be no question that Thos. H. Handy, for value given, acquired the right to manufacture and sell the bitters in question. This right Mr. Peychaud, whom both parties recognize, sold Handy, and thereafter entered Handy’s employ, and, for years, served on a salary paid to him by Handy, as manufacturer for Handy, of said bitters. At that time Handy adopted a trade mark, for the sale of the bitters thus manufactured for him, by Peyehaud, and this manufacture and sale, under said trade mark, Peyehaud remaining in his service for the purpose, continued for years. The defendant in like manner, was in Handy’s employ, and there learned to compound the bitters, known as Handy’s bitters, with full knowledge of said trade mark, and of Handy’s rights in the premises; when defendant quit Handy’s employ he set up a rival establishment, began the manufacture of said bitters, put them on the market for sale, with solicitors and canvassers engaged to sell them; and to do this, he appropriated, without right, Handy’s trade mark. In size, in style and color, in lettering and execution word for word, there is not a point of difference between the trade mark of Handy and the trade mark put forth by defendant, except, that the latter is styled * Commander’s Bitters,’ while the former was styled Handy’s Bitters.’
“ In defence against plaintiffs’ action against him for this appropriation and infringement, defendant asserts and argues that plaintiffs are themselves without right or title to the Handy bitters and Handy trade mark. On this issue I find that plaintiffs’ firm'is composed of: First, Mr. McQuoid, who, as the principal, with Thos. H. Handy, his agent, was engaged in the use of said trade mark and the manufacture of said bitters and their sale thereunder; second, of Thos. H. Handy’s widow, he having departed this life; third, of Mr. Wilkerson, who was also with Thos. H. Handy, agent, as employee; and, fourth, of Mr. Minnet. Their place of business is where Handy transacted his business. And thus it seems that Handy transmitted to the plaintiffs his right to manufacture the Handy bitters, and the right to the trademark, which he had adopted, as has been shown, by title from Peyehaud and by Peychaud's acquiescence. On this showing it would seem clear that Handy’s title, possession and use of the trade mark for years, acquiesced in by Pey-chaud, and by defendant, were thus transmitted to the plaintiffs, and that their possession and use, since his death, are sufficient to enable them to stand in judgment, and to defend their possession and right of use of said trade mark against defendant’s trespass and encroachment, especially when defendant alleges no title or right in himself, and makes no effort to show any legal title or right thereto.
“ The rule of law is universal that a bona fide possessor, presumably the owner, is not required to prove title as against a mere trespasser.
“ On the trial defendant testified that Handy was an infringer upon Peychaud’s rights, an appropriator of Peychaud’s trade mark, and that he (defendant) considered that he (defendant) has as much right to do this as Handy had.
“ Reference to the Peychaud label shows that Handy did no such thing. There is in language, design and execution, a total dissimilarity between the Handy trade mark and the trade mark of Pey - chaud, to which latter (it would seem) Mr. Jung has succeeded.
“Besides this fact as already stated, it is shown that Handy acquired his right to manufacture bitters similar to Peychaud’s from Peychaud himself, and that Peychaud, with full knowledge and acquiescence, served in Handy’s employ, making the Handy Bitters under the trade marie then used by Handy, and afterward by Handy, Agent, and since his death by Handy’s widow and her associates in the plaintiff firm, who were his associates and employees, or principal, while he was living and so engaged in said business.
“ Therefore defendant’s denial of plaintiffs’ title is without legal effect in the first place, and in the second place his excuse for his-infringement makes him, in the eye of the law, a wanton trespasser, because, in the third place, he bases his trespass or infringement on the assumption that Handy was a trespasser, which we have seen is groundless and false, and last and worse of all he presents himself as a wanton trespasser, willing to infringe upon Handy and Peychaud alike, for his own profit and at his caprice.
There can be no excuse, in law or in morals, for such conduct,, and a court of equity would not hesitate to protect by injunction the plaintiffs in their use and possession of the Handy trade mark, under such circumstances.”

For the purpose of fully disclosing the difference between the Handy trade mark and the original Peychaud trade mark we have-appended the latter, viz.:

These different labels point unerringly to the same aromatic bitter cordial that all parties used at different times and under different circumstances.

We are of the opinion that plaintiffs have made their case quite clear; and that the defendant has been guilty of an infringement of their right to use exclusively the trade mark, viz.: “Handy’s Aromatic Cocktail Bitters.”

The law applicable to trade mark is very well stated in TradeMark cases, 100 U. S. 82, in which Mr. Justice Miller, speaking for the court, said:

“ The right to adopt and use a symbol or a device to distinguish the goods or property made or sold by the person whose mark it is, to the exclusion of use byall other persons, has been long recognized by the common law and the chancery courts of England, and of this country, and by the statutes of some of the States. It is a property right for the violation of which damages may be recovered in an action at law, and the continued violation of it will be enjoined by a court of equity, with compensation for past infringement.
“ This exclusive right was not created by the act of Congress, and does not depend upon it for its enforcement. The whole system of trade-mark property and the civil remedies for its protection existed long anterior to that act, and have remained in full force since its passage.
“ These propositions are so well understood as to require neither the citation-of authorities, nor elaborate argument to prove them.”

Again:

“The trade mark may be, and generally is, the adoption of something already in existence as the distinctive symbol of the party using it.
“ At common law the exclusive right to it grows out of its use, and not its mere adoption. * * * But it does not depend upon novelty, invention, discovery, or any work of the brain. It requires no fancy or imagination; no genius nor laborious thought. It is simply founded on priority of appropriation.'”

The cases therein considered were criminal prosecutions founded upon certain acts of Congress which provided for the registration of • trade marks, accompanied with a penalty for their violation, and the court held them to be unconstitutional and void.

In Manufacturing Company vs. Tranier, 101 U. S. 51, the court, speaking through Mr. Justice Field, says:

. “Every one is at liberty to affix to, a product, of his own manufacture any symbol or device, not previously appropriated, .which will distinguish it from articles of .same generabnature manufactured or sold by others,,and thus secure,toiMmself.the'.beneñts of increased sale by reason of any peculiar excellence he may have given to it. The symbol or device thus becomes a sign to the public of the origin of the goods to which it is attached, and an assurance' that they are the genuine article of the original producer. In this way it often proves to be of great value to the manufacturer in preventing the substitution and sale of' an inferior and different article ■ for his products. It becomes his trade mark, and the courts will ■ protect him in its exclusive use, either by the imposition of damages' for its wrongful appropriation or by restraining others from applying' it to their goods, and compelling them to account to them for profits made on a sale of goods marked with it. * / * *
“ The object of the trade mark is to indicate, either by its own meaning or by association, the origin or ownership of the article to Which it is applied. If it did not it .would serve no useful purpose, either to the manufacturer or to the public; it would afford no protection to either against the sale of a spurious in place of the genuine article.”

In McLean vs. Fleming, 96 U. S. 245, a case is stated quite similar to the instant one, in that the plaintiff sought by injunction to restrain the defendant from infringing upon his trade mark for his liver pills, claiming the “ exclusive ownership of a certain medicinal manufacture known as ‘Dr. C. McLean’s Liver Rills,’ and of the trade mark used in advertising and vending the same.”.

In the course of their opinion the court said:

“ Equity gives relief in such a case, upon the ground that one man is not allowed to offer his goods for sale, representing them to be the. manufacture of another trader in the same commodity.
“ Suppose the latter has obtained celebrity in his manufacture, he is entitled to all the advantages of that cele‘brity, whether resulting from the greater demand for his goods, or from the higher price the public are willing to give for the article, rather than for the goods of the other manufacturer, whose reputation is not so high as a manufacturer.
“ When, therefore, a party has been in the habit of stamping his goods with a particular mark or brand, so that the purchasers of his goods having that mark or brand know .them to be of his manufacture, no other manufacturer has a right to adopt the same stamp, because, by doing so, he would be substantially, representing. the goods to be the manufacture of the person who first adopted the stamp, and so would or might be depriving him of the profit he might make by the sale of the goods which the purchaser intended to buy.
What degree of resemblance is necessary to constitute an infringement is incapable of exact definition, as applicable to all cases.
“All that courts of justice can do, in that regard, is to say that no trader can adopt a trade mark, so resembling that of another trader, as that ordinary purchasers, buying with ordinary caution, are likely to be misled.”

Similar principles have been recognized in the decisions of this court, and notably in Udolpho Wolfe vs. Barnett & Lion, 24 An. 97, in which the defendants were enjoined from preparing and selling, or offering to sell, any imitation of the plaintiff’s celebrated gin, under the title or name of “Wolfe’s Aromatic Schiedam Schnapps,” or from using any imitation of that name or brand, the plaintiff claiming damages for an infringement of his rights as a manufacturer of that kind of gin, and as the originator of that particular trade mark.

It appeared in the evidence in that case, that the plaintiff manufactured his gin in Holland and put it up in bottles ‘ ‘ with uniform and peculiar marks or labels,” which were used to denote his goods thus made and sold, and that in the trade this name was fully recognized as his trade mark.

Recognizing and applying the principles announced in the foregoing decisions, the court reversed a judgment of the lower court, perpetuated the injunction and awarded to the plaintiff fifteen hundred dollars damages.

In our opinion the law as well as the evidence supports the judgment appealed from.

The amount of damages awarded the plaintiffs in the instant case appears to be reasonable.

The sum of four hundred and fifty dollars will scarcely compensate them for the loss they have sustained, but it will have the effect, doubtless, of preventing the defendant from perpetrating a further infringement upon their trade mark without being burthensome or oppressive.

Judgment affirmed.