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Eddy v. Dennis Dennis/Opinion of the Court

Dennis, the complainant below, obtained an injunction and recovered damages against Eddy and others for an infringement of his letters-patent for an improvement in 'shovel plows.' The original letters were issued on the twenty-third day of February, 1858, and the patent was reissued on the fourth day of August, 1863.

The claim made under the reissued patent is in the words following:--

'Having thus described my invention, I wish it distinctly understood that I do not claim broadly the idea of passing a portion of the earth over the mould-board into the furrow behind, as I am aware that this has before been done. Neither do I claim applying a movable mould-board to one of the outer edges of the share, as described in an application of J. Drummond, rejected Oct. 25, 1844. Neither do I claim the use of projecting blades at the outer ends of the share, as described in the patent of B. Langdon, granted June 22, 1842, and others; but,

'Having thus described my invention, what I claim as new and desire to secure by letters-patent is, 1st, the inclined shovel mould-board B, formed and mounted substantially as described, and constructed highest at its outer edges, so as to form on each ide of the standard A a recess c, through which recesses a portion of the earth may, after rising upon the mould-board, descend into the furrow in the rear of the plow.

'2d, The combination with the beam A and mould-board B of the adjustable wheel F, arranged and operating substantially as and for the purposes specified.'

The original patent claimed only what is here described as the second claim. The point of the reissue is in the claim as first above set forth.

The use of the shovel-plow is in cultivating the soil between the rows of growing crops, after they are somewhat advanced in their growth, to stir up and loosen the soil, and to free it from weeds. This plow is distinct in many parts of its construction, as well as in its intended effect, from the plow used in breaking up the soil; that is, from the plow in common use.

In first considering the claim contained in both the original and reissued patents, and in the latter described as the second claim, we remark, that we concur entirely with the learned judge who tried this case at the circuit, in his view of it.

The adjustable wheel is the important feature of this claim. The bar or beam and the mould-board suggest nothing in the way of novelty, invention, or of peculiarity. The use of the base of a plow as a fulcrum, by means of which the plowman can raise or lower the point of the plow, or turn it in different directions, has long been in use, and on nearly every kind of plow. Peter Dutton's stay-iron, rejected in 1865, affords an illustration.

That an adjustable wheel was deemed by the inventor to be quite a different thing from the simple bar or shoe in ordinary use, is manifest from the careful description of its advantages in the original patent. It is described in these words:--

'F is an adjustable metallic roller, which is attached to the bar A, just back of the mould-board B. The axis of the roller F is fitted or has its bearings in arms f f, which project obliquely from a plate g, said plate being slotted longitudinally, so that bolts h h, which secure the mould-board to the bar, may pass through said slots, the bolts h having each a nut i on them, by screwing up which the plate, and consequently the roller, may be secured higher or lower, as may be desired.'

It is also set forth that the point or share of the plow may be made to penetrate the soil at a greater or less depth, by adjusting the roller and draught-chain; the roller serving as a gauge or guide, and the draught-chain being adjusted at the end of the beams, so that the draught may aid the roller; the point or share may be made to penetrate the soil, or otherwise.

The plows proved to have been manufactured by Eddy & Co., the defendants, have none of them this element of an adjustable wheel or roller. Their plow rests upon a plain bar or shoe of iron. It has no mechanical contrivance for fixing the angle at which the point shall penetrate the earth. This is done by the strength of the plowman, who uses the shoe as a fulcrum for that purpose.

No argument is needed to show that there has been no violation by the defendants of the Dennis patent in this particular.

In considering the effect of the remaining claim of the reissue, we are greatly aided by the clear and explicit statement of the patentee of what he does not claim as his invention.

There are three mechanical advantages in his plow, which he says he does not claim to have invented:--

1st, The idea of passing the earth over the mould-board into the furrow behind. This result is really the fundamental advantage in both the plaintiff's and defendants' plows. In other words, the principal benefit to be derived from either is found in the fact that the earth, loosened and broken, will be deposited in the furrow behind the plow, the movable mould-boards and the projecting blades at the outer ends of the share both contributing to this result. But the patentee says that he is aware that this had been done before his invention, and he makes no claim to an invention or discovery in this respect.

2d, The patentee does not claim the application of a movable mould-board to one of the outer edges of the share. This, he says, was described in an application previously made (in 1844) by Drummond.

3d, The patentee does not claim the use of projecting blades at the outer ends of the share. This had been described in a patent granted to Langdon in 1842.

To these disclaimers we may add that he does not make a claim for invention in using the shovel of this plow in an inclined form. He does not even give the angle of inclination at which it shall be used, whether it shall be 75°, like the old plows, or 45°, like this one. Ever since plows have been used,-and there is no secular history of man in which the plow and the hoe are not recorded,-we may safely believe that there has been an inclination, sometimes greater and sometimes less, in the shovel and mould-board. A perfectly upright shovel would be nearly immovable, except in a light soil and to a very slight depth, while one perfectly flat would be of little value.

Remembering these four items as not being parts of the plaintiff's invention, we are prepared to consider what he claims to have invented and desires to secure by a patent. In his own words, it is 'the inclined shovel mould-board B, formed and mounted substantially as described, and constructed highest at its outer edges, so as to form on each side of the standard A a recess c, through which recesses a portion of the earth may, after rising upon the mould-board, descend into the furrow in the rear of the plow.'

An inclined shovel mould-board, simply and alone, is not spoken of as an invention. It had long been in use in other plows. What the claim means to appropriate is a shovel 'formed and mounted and constructed as described.' There is nothing in the form of mounting-that is, placing it upon the beam of the plow that is peculiar. It is the construction that gives it effect. How is it formed and mounted and constructed? He says, in the general description, that it is a metallic bar so formed or curved that the front will form the beam of the implement, and the back an inclined portion to which the mould is attached, while the upper edge of the mould-board is so scolloped out as to form a recess over which the earth may pass, to which is attached a metallic adjustable roller, serving as a gauge or guide to regulate the depth that the point shall penetrate the earth.

The defendants insisted that, like the other, this claim also describes a combination, of which the adjustable roller is an essential element, and that there can be no infringement unless the roller is used. There is much force in this argument.

There is, also, another view of this part of the case. Eliminate from this description, first, the idea of an inclined shovel or mould-board, and, second, the idea of passing the earth over the plow into the furrow, both of which are outside of the plaintiff's invention, and nothing remains, except a recess formed by a scolloped edge on which the earth will pass, and an adjustable roller in connection with the beam of the plow.

As has been before said, the defendants have never used the adjustable roller. The infringement, then, if any, consists in the use of a recess formed by a scolloped edge over which the earth will pass. The learned judge at the circuit held that the patent was good for this claim, and that the defendants had infringed it. We have reached a different conclusion.

We think the use of the expression, 'scolloped out so as to form a recess,' was not intended to say that the particular form in which the recess was made should be that of a curve. A scollop may, indeed, imply the idea of a curve, but in a vague and indefinite manner. It is as if it had been said, it 'shall be so cut out as to form a recess.' The formation of the recess was the idea in the mind of the draughtsman, with no reference to any question of curved lines or right lines. That this was the fact, is made evident by the absenc of the word 'scolloped' in the claim itself, although used in the general description. If that form had been deemed material, it would have been inserted where the patentee sets out with precision what it is that he claims. In the claim, it is described by the words 'constructed highest at its outer edges, so as to form on each side a recess' through which the earth may pass. A recess made by the outer edges being higher than the inner parts was the effect intended to be provided for, and that only. If it had been intended to describe a recess made by a curve, to the exclusion of a recess made in any other manner, it was very easy to say so; but the patentee did not so say, and we think he did not so mean.

If the patentee here had been the inventor of the mould-board with a recess for the purpose of passing the earth through it into the furrow behind, and had described his invention in the words used in his reissued patent, would it not have included as well a structure made by right lines as one made by curved lines? In Winans v. Denmead, cited by the respondent's counsel, it is said, 'Although a particular geometrical form is best for a certain purpose, yet other forms, giving substantially the same result, are infringements. The result need not be the same in degree if it be the same in kind.' 15 How. 344.

If this be so, it can scarcely be denied that the words used in this reissued patent include both forms of a recess, and that it thereby claimed what was previously known and in use; to wit, a structure for the passage of the earth into the furrow behind.

No testimony is given that the sod will be more thoroughly broken, the earth better pulverized, or the furrows better filled by the passage of the earth through a recess made by curved lines, than by its passage through a recess of the same depth made by straight lines. The plaintiffs, although witnesses, gave no testimony to that effect. Of our own knowledge, we do not know that it is so. As a matter of law, certainly we are not able to decide that the right-lined recess is any less efficacious for the purpose desired than a curved-line recess.

There is, indeed, testimony to show that the earth and sod passing over the low mould-boards of the exhibit M were left in a worse condition than when passed over the recess of the Dennis plow.

In speaking on this subject, Henry Holmes says that it left the furrow behind hard and flat, as if a log had been drawn between the rows. The witness Broughton speaks of it as throwing a double furrow outward, and as leaving the furrow bare behind.

But neither of these witnesses attribute the excellences of the one plow or the defects of the other to the existence of curved or straight lines in forming the recess.

1. The second claim of the plaintiff's specification, 'the combination with the beam A and the mould-board B with the adjustable wheel F, arranged and operating substantially as used for the purposes specified,' gives no cause of action. It is a claim for a combination of which the adjustable wheel F is an essential element; and it is not pretended by any one that the defendants have ever used an adjustable wheel in the plows made by them.

2. The first claim does not cover an inclined shovel mould-board simply, nor does it cover the principle of passing the earth over the recess of the plow into the furrow behind, nor does the claim cover the passage of the earth over a recess formed exclusively with a curved edge. Its effect is to provide for a recess cut or carved out for the purpose intended. This is not novel, the evidence showing many instances prior to the plaintiff's original patent in which the principle and process had been used and patented.

3. There is no evidence to show that there is any advantage in passing the earth through a recess formed by curved lines, rather than through a recess formed by right lines.

For these reasons, the decree of the court below must be reversed.

As Dennis has no cause of action, the question of the amount of damages cannot arise.

Decree reversed, and cause remanded with instructions to dismiss the bill with costs.


text: Talk:Eddy v. Dennis Dennis/Opinion of the Court

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United States v. Two Hundred Barrels of Whiskey

APPEAL from the Circuit Court of the United States for the District of Louisiana.

April 18, 1874, the property in controversy in this suit, said to be owned by one Karstendiek, was seized, as forfeited to the United States, by the collector of internal revenue for the first collection district of Louisiana; and it was at once libelled by the United States attorney for Louisiana, who, on the twenty-seventh day of March, 1875, filed an amended libel, setting out the causes of seizure and forfeiture in these words, viz.:--

'For that the said Karstendiek, at the time and place of seizure of said property as aforesaid, being, and for more than six months prior thereto having been, a rectifier of distilled spirits, and, as such, having paid the special tax required by the statute of the United States, and being then and there on said premises engaged in and carrying on the business of rectifier as aforesaid, for and during the time and period aforesaid, did, on the fifth day of January, 1874, and at divers other times and dates during the period of six months aforesaid, the precise times and dates whereof are to the said attorney unknown, fill for shipment, sale, and delivery, on his said rectifying premises, a large number of casks, barrels, and packages with distilled spirits, the precise number whereof being to the said attorney unknown, each and every which said casks and packages, so filled as aforesaid, then and there did contain, respectively, more than twenty gallons of distilled spirits, and did then and there, as to each and all of said casks and packages aforesaid, wilfully and knowingly omit, neglect, and refuse to procure and cause, as by the statute of the said United States he was then and there to do, in carrying on and conducting his said business of rectifier as aforesaid, said, a United States gauger to then and there gauge and inspect the said casks and packages, and to place thereon the stamps required by law, contrary to the form of the statute of the United States in such case made and provided, by reason whereof, and by force of the statutes of the United States in such case made and provided, all the said distilled spirits hereinbefore enumerated and described, found and seized at the time and place aforesaid, and so owned by the said Karstendiek aforesaid, at the time and under the circumstances aforesaid, became forfeited to the United States.

'For that the said Karstendiek, at the time and place of seizure of said property as aforesaid, being, and for more than six months prior thereto having been, a wholesale liquor-dealer as aforesaid, for and during the time and period aforesaid, did, on the fifth day of January, 1874, and at divers other times and dates during the period of six months aforesaid, the precise times and dates whereof are to the said attorney unknown, fill for shipment, sale, and delivery, on his said premises, a large number of casks, barrels, and packages with distilled spirits, the precise number whereof being to the said attorney unknown, each and every which said casks and packages, so filled as aforesaid, then and there did contain, respectively, more than twenty gallons of distilled spirits, and did then and there, as to each and all of said casks and packages aforesaid, wilfully and knowingly omit, neglect, and refuse to procure and cause, as by the statute of the said United States he was then and there to do, in carrying on and conducting his said business of wholesale liquor-dealer as aforesaid, a United States gauger then and there to gauge and inspect the said casks and packages, and to place thereon the stamps required by law, contrary to the form of the statute of the United States in such case made and provided, by reason whereof, and by force of the statutes of the United States in such cas made and provided, all the said distilled spirits hereinbefore enumerated and described, found and seized at the time and place aforesaid, and so owned by the said Karstendiek aforesaid, at the time and under the circumstances aforesaid, became forfeited to the United States.'

Twenty-five barrels of the whiskey seized were never the property of Karstendiek, but were claimed by and found to belong of other parties. All the claimants demurred to the information, upon the ground that neither count set forth or alleged any facts warranting the seizure or forfeiture of the liquors. The demurrer was sustained and the information dismissed. The case was then brought here.

Mr. Assistant Attorney-General Smith for the United States.

Mr. J. D. Rouse, contra.

MR. CHIEF JUSTICE WAITE delivered the opinion of the court.


text: Talk:United States v. Two Hundred Barrels of Whiskey


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United States v. Two Hundred Barrels of Whiskey/Opinion of the Court

This case presents the question, whether property owned by and found upon the premises of a rectifier or wholesale liquor-dealer can be seized as forfeited to the United States, under sect. 96 of the 'Act imposing taxes on distilled spirits,' &c., passed July 20, 1868, 15 Stat. 164, because such rectifier or wholesale liquor-dealer has knowingly and wilfully neglected, omitted, or refused to cause packages of distilled spirits contain more than twenty gallons each, filled for shipment or sale on his premises, to be gauged, inspected, and stamped, in accordance with the provisions of sect. 25 of the same act.

Sect. 25 provides, that whenever any cask or package of rectified spirits shall be filled for shipment, sale, or delivery on the premises of any rectifier who shall have paid the special tax required by law, it shall be the duty of a United States gauger to gauge and inspect the same, and place thereon an engraved stamp of a particular kind; and whenever any cask or package of distilled spirits shall be filled for the same purpose on the premises of any wholesale liquor-dealer, it shall be the duty of the United States gauger to gauge, inspect, and stamp the same in a like manner.

Sect. 96 provides, 'that if any. . . rectifier or wholesale liquor-dealer. . . shall knowingly and wilfully omit, neglect, or refuse to do, or cause to be done, any of the things required by law to be done in the carrying on or conducting of his business, or shall do any thing by this act prohibited, if there be no specific penalty or punishment imposed by any other section for the neglecting, omitting, or refusing to do, or for the doing or causing to be done, the thing required or prohibited, he shall pay a penalty of $1,000, and. . . all distilled spirits or liquors owned by him, or in which he has any interest as owner,. . . shall be forfeited to the United States.'

Sect. 57 provides, that 'all distilled spirits found, after thirty days from the time this act takes effect, in any cask or package containing five gallons or more, without having thereon each mark and stamp required therefor by this act, shall be forfeited to the United States.'

Sect. 25 does not specifically impose the duty upon the rectifier or wholesale dealer of causing or procuring the filled casks to be gauged, inspected, or stamped. It is made the duty of the gauger to do the gauging, inspecting, and stamping, but not, in terms of the dealer, to cause it to be done. If there were nothing more, it would be clear that any omission of the rectifier or dealer to act in the matter would not be a cause of forfeiture. Sect. 96 was, however, undoubtedly intended to impose upon rectifiers and wholesale liquor-dealers the duty of doing, or causing to be done, every thing pertaining to their respective occupations which was necessary, in order to enable others acting under the law to do what was required of them. If they failed in this, and there was no other penalty provided for the neglect, they were subjected to the provisions of that section. If, however, by any other section a specific duty was imposed on them, which, if performed, would enable the other parties to act in the p oper manner, and a penalty was prescribed for the omission to perform such duty, they were not to be proceeded against under sect. 96. It was not intended by Congress in that section to add to the already-existing penalties for an offence, but to provide for omitted cases only. The object evidently was to so contrive the machinery of the law that when one part was set in motion the rest must follow.

If, then, it is found that by some other section of the act a penalty is imposed upon the rectifier or wholesale dealer, as a consequence of the failure of the gauger to stamp the casks filled on his premises for shipment, sale, or delivery, it may fairly be presumed that this was the penalty he was to suffer for neglecting to procure the stamping to be done; for the gauging and inspecting, under the law, are only preliminary to the stamping. The only neglect he could be charged with under sect. 96 would be a failure to make known at the proper office that there were on his premises packages requiring the action of the gauger, under sect. 25. Now, sect. 57 provides, that if packages of distilled spirits are found on his premises containing five gallons or more each, which do not have upon them each mark or stamp required by the law, they shall be forfeited. This, then, is a specific penalty provided for the failure or procure or cause the stamping to be done on packages of five gallons and upward; and it follows the packages wherever found. The unstamped packages in this case contained each twenty gallons or more.

It has been contended, however, that this special provision of sect. 57 applies only to distilled spirits on hand when the act of 1868 was passed. Such seems to have been the opinion of Judge Ballard, of the Kentucky district, as reported in the case of United States v. Thirty-seven Barrels of Appeal Brandy, 11 Int. Rev. Rec. 136; but since that time, in 1871, Judge Lowell, of the Massachusetts district, has decided the other way. United States v. Ninety-five Barrels of Distilled Spirits, 14 id. 6. Judge Knowles, of the Rhode Island district, afterwards followed this ruling of Judge Lowell. United States v. Thirty-four Barrels Distilled Spirits, 13 id. 188. Other able district judges have decided that sect. 96 did apply to this class of omissions, but it nowhere appears from their opinions that their attention was called to the provision of sect. 57. United States v. One Rectifying Establishment, 11 id. 45, decided in 1869, in the northern district of Mississippi, and United States v. One Hundred and Thirty-three Casks Distilled Spirits, id. 191, decided not long after in the California district. The circuit judge in this case has decided in accordance with the opinions of Judges Lowell and Knowles, and held that sect. 57 did apply. The rulings of two commissioners of internal revenue are to the same effect, one dated Sept. 10, 1869, 10 id. 97, and the other, May 13, 1871, 13 id. 170; and it seems to us that this is the proper construction of the law. It is true that the clause referred to is found in a section of the statute which relates especially to spirits on hand when the law was passed; but it is general in its terms, and broad enough to cover the case. As was well said by Judge Lowell in the case against ninety-five barrels of distilled spirits, 'to limit the meaning will not only require us to read 'act' as if it were 'section,' but to disregard 'each;' because there is but one particular stamp required by this section, and this would naturally be mentioned 'as the stamp required by the section,' or some such expression.' And again, as is also said by the same judge, 'It is proper and usual that the goods which are not stamped should be forfeited, and it is so provided in respect to cigars and tobacco, by sects. 70 and 90; but there is no provision for forfeiting unstamped spirits, unless it be the one in question.'

The rules and regulation which the Commissioner of Internal Revenue is authorized by sect. 2 to prescribe cannot ave the effect of bringing the case under the operation of the penalty provided in sect. 96, if it was already covered by sect. 57. The regulations of the department cannot have the effect of amending the law. They may aid in carrying the law as it exists into execution, but they cannot change its positive provisions.

Decree affirmed.


text: Talk:United States v. Two Hundred Barrels of Whiskey/Opinion of the Court


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Railroad Company v. Durant

APPEAL from the Circuit Court of the United States for the District of Nebraska.

This was a bill in equity by the Union Pacific Railroad Company against Thomas C. Durant, to compel his conveyance to the company of certain lots and lands.

The case made by the complainant, in its bill, is substantially this: That in the month of November, 1863, the Union Pacific Railroad Company, having commenced surveys at or in the vicinity of Omaha, for the purpose of ascertaining the best point for the location of the eastern terminus of its road, and the most practicable route thence westward, certain citizens of Omaha proposed to the engineer in charge of said surveys to convey to the defendant, the then vice-president and principal managing officer and agent of the company, for its use, certain tracts of lands and certain lots therein described, 'said conveyances to be made conditional upon the location of the said eastern terminus within one and a quarter miles of Farnham Street, thence running west from said point towards the Platte Valley;' that such proposal was accepted, and the conditions performed, and that the several parties, being satisfied therewith, made conveyances according to their agreement, but by the express direction of the defendant his name was inserted therein as grantee and trustee; that the said conveyances recited that they were made 'in consideration of the location of the eastern terminus of the Union Pacific Railroad at Omaha, within one and a quarter miles of Farnham Street, thence running west from said point to the Platte Valley;' that it was the intention of the donors to convey, and that the defendant took the lands and lots in trust for the company, it having furnished the consideration therefor, and still so holds the same, but has refused, upon request, to convey to the company. The bill prays for a decree to compel him to execute the trust and convey them to the complainant.

The substance of the answer is that the company did not fix the location of the eastern terminus or the westward route of the road, but that the surveys therefor were made at the defendant's individual expense, and under his management and direction; that the proposed donation was intended to be made to him individually, in order to secure his influence with the president and the company in establishing said terminus and route; that the word 'trustee' was inserted in said deeds solely at his own instance, to declare a trust in favor of the grantors, in case of a non-performance of the conditions of the agreement; that he has conveyed to the corporation a portion of the lands necessary to its use, but that the residue he still holds; that the sole consideration of said conveyances was the location of the aastern terminus within one mile and a quarter of Farnham Street, and the approval of the route westward by the president, in whom alone was vested the power to locate the said terminus or the said route; that the condition of the contract never was complied with, and that therefore there has been a reversion of the lots and lands to the grantors, for whom he holds, and who should be made parties to the action.

Upon the final hearing the court dismissed the bill, on the ground, as to most of the property in controversy, that the proposal pursuant to which the conveyances were subsequently executed to the defendant as trustee was secured by an illegal and oppressive exercise of his power as the acting president and active manager of the company, and that he held the property as trustee for the donors, except as to certain tracts, which, it was admitted, he had received as trustee for the company.

From the decree dismissing the bill this appeal was taken.

Mr. Andrew J. Poppleton for the appellant.

Mr. James M. Woolworth, contra.

MR. JUSTICE SWAYNE delivered the opinion of the court.

title: Railroad Company v. Durant


text: Talk:Railroad Company v. Durant

title: Talk:Railroad Company v. Durant


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Railroad Company v. Durant/Opinion of the Court

There are no questions of law or fact of any difficulty in this case. A brief opinion will be sufficient to dispose of it.

An examination of the record has satisfied us that the consideration for the conveyances to the appellee proceeded wholly from the appellant; that the appellee took the titles in trust; that he was a trustee; that the appellant was the cestui que trust; and that the appellee has stood in that relation ever since the conveyances were executed to him, and that he still holds the premises in that capacity. This is the whole case. The claim of the appellee that he took the titles in trust for the grantors is absurd upon its face, and contradicted by the proofs. If the grantors intended to deny the right of the company to demand the performance of the contract, why did they convey at all? Potior est conditio defendentis. Why interpose a trustee? and especially why recite in the deeds that the condition of the subscriptions had been fulfilled?

These suggestions set in a strong light the character of this pretence.

But it is said the conveyances grew out of an illegal transaction between the company and the grantors. To this there are several answers. The grantors have voluntarily executed the contract. They have not intervened, and do not complain.

The conveyances to the trustee were, in the view of the law, the same thing as if they had been to the company. The transaction between the parties in interest was thus finally closed. There will be neither more nor less of illegality between the original parties, whether the trustee does or does not respond to his obligation to the company. In that obligation there is no pretence for saying there is any taint of any kind; and it is that obligation alone which it is sought to enforce by this proceeding. All the deeds but one designate the appellee as 'trustee,' without setting forth for whom or for what purpose. Parol evidence was admissible to show these things. The designation alone was sufficient to devolve the duty of inquiry upon any third person dealing with the property. Duncan v. Janudon, 15 Wall. 165; Shaw v. Spencer and Others, 100 Mass. 321; Sharp v. Taylor, 2 Ph. 801; McBlair v. Gibbs, 17 How. 232; Brooks v. Martin, 2 Wall. 70. The appellee cannot claim adversely to those for whom he acquired and holds the property. The rights of others, if such rights exist, do not concern him. He cannot vicariously assert them.

The office of a trustee is important to the community at large, and frequently most so to those least able to take care of themselves. It is one of confidence. The law regards the incumbent with jealous scrutiny, and frowns sternly at the slightest attempt to pervert his powers and duties for his own benefit. The tenant cannot deny the title of his landlord. A multo fortiori ought not the trustee to be permitted to deny that of his beneficiary.

The position assumed by the trustee in this case is not unlike that of one who, having deprived the owner of the possession of his property, when called to account civilly or criminally, should insist that the owner's title was fatally tainted with fraud, and that hence the offender had the right to 'take and carry away,' and keep and enjoy, the property himself with impunity.

The conduct of the appellee, stripped of the verbiage with which it has been surrounded, and viewed in its nakedness, strongly offends the moral sense of the judicial mind.

The decree will be reversed, and the cause remanded with directions to enter a decree in favor of the complainant; and it is

So ordered.


text: Talk:Railroad Company v. Durant/Opinion of the Court


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United States v. Mann

ERROR to the Circuit Court of the United States for the District of Minnesota.

This is an action by the United States to recover from the defendant $500, as a forfeiture for an alleged violation of sect. 3177 of the Revised Statutes.

The complaint alleges that on the 7th of January, 1875, in the daytime, in the city of St. Paul, Minn., the defendant, Walter Mann, who was then and there the vice-president of the Merchants' National Bank of St. Paul, had the charge and superintendence of the place of business, to wit, the rooms and vaults occupied by said bank, in which said place of business were then and there kept by said bank certain articles subject to tax, to wit, certain bank-checks which had theretofore been drawn upon and paid by said bank, a more particular description whereof is to the plaintiff unknown.

That the defendant, having then and there the charge and superintendence of the said place of business of said bank in which were then and there kept the aforesaid paid bank-checks, was, by Irving Todd, who was then and there the collector of the internal revenue of the United States in and for the collection district of which the said city was then and is a part, and who had then and there entered the said place of business of sid bank for the purpose of examining, as such collector, the said paid bank-checks, then and there duly requested to suffer him, the said collector, as such, to examine the paid bank-checks aforesaid, so kept by said bank then and there in its said place of business, and that the said defendant then and there refused to suffer the said collector to examine said checks, or any one or part of the same, contrary to the statute in such case made and provided.

The defendant demurred, on the ground that the complaint did not state facts sufficient to constitute a cause of action.

The demurrer having been sustained, and judgment rendered for the defendant, the United States brought the case here.

The Solicitor-General for the United States.

Mr. George L. Otis, contra.

MR. JUSTICE CLIFFORD delivered the opinion of the court.

title: United States v. Mann


text: Talk:United States v. Mann

title: Talk:United States v. Mann


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United States v. Mann/Opinion of the Court

Authority is given to any collector, deputy-collector, or inspector of internal revenue to enter, in the daytime, any building or place within his district, where any articles or objects subject to such taxation are made, produced, or kept, so far as it may be necessary for the purpose of examining such objects or articles; and the provision is, that any owner of such building or place, or any person having the agency or superintendence of the same, who refuses to admit such officer, or suffer him to examine such articles or objects, shall for every such refusal forfeit $500. Rev. Stat., sect. 3177.

Founded upon that provision in the act of Congress, the complaint filed in the Circuit Court alleges and charges that the defendant, having at the time mentioned the care and superintendence of the described bank and its place of business, in which certain paid bank-checks were then and there kept, refused then and there to suffer the collector of the district, who then and there entered the bank for the purpose, to examine the said paid bank-checks so kept then and there in said place of business, though thereto requested by the collector, which said refusal was then and there contrary to the form of the statute in such case made and provided.

Service was made, and the defendant appeared and demurred to the complaint. Hearing was had, and the court sustained the demurrer, the reasons for the conclusion not being exhibited in the transcript; but the record contains a statement to the effect that the plaintiffs standing on their complaint, the court rendered judgment for the defendant. Error was assigned by the plaintiffs, and they sued out the present writ of error. It is now contended by the United States that the judgment was for the wrong party; that it should have been rendered for the plaintiffs, and not for the defendant, which is the only error assigned for the consideration of this court.

Bank-checks, drafts, or notes for the payment of money drawn upon any bank, broker, or trust company, at sight or on demand, are subject to a tax of two cents, to be paid by the person who makes, signs, or issues the same, or for whose use or benefit the same are made, signed, or issued. 18 Stat. 310; Rev. Stat., sect. 3418. Exceptions exist to that requirement in behalf of Federal and State officers, and in behalf of county, town, and other municipal corporations, when in the strict exercise of functions belonging exclusively to their ordinary governmental or municipal capacity. Id., sect. 3420.

Cases arise where such an instrument is issued without being duly stamped; and in such a case the provision is, that neither the instrument nor any copy thereof shall be admitted or used in evidence in any court until a legal stamp denoting the amount of the tax is affixed thereto, as prescribed by law. Instruments of the kind are required to be stamped at the time of their issue; and the provision is, that unless a stamp or stamps of the proper amount shall be affixed to the same, and cancelled, it shall not be lawful to record the instrument, and that the record if so made shall be utterly void. Provision is also made that parties violating those regulations, by making, signing, or issuing any such instrument, document, or paper, without being duly stamped, shall for every such offence forfeit the sum of $50, and that the unstamped instrument shall be deemed in valid and of no effect. Id., sect. 3422.

Such officer may enter, in the daytime, any building or place within his district where any articles or objects subject to taxation are made, produced, or kept, so far as it may be necessary for the purpose of examining said articles or objects. Unless articles or objects of taxation are made, produced, or kept in any building belonging to another, the collector derives no authority under that act to enter the building at all; and even then his right to enter the same is strictly limited by the words, 'so far as it may be necessary for the purpose of examining such articles or objects.'

Where articles or objects subject to taxation are made, produced, or kept in any building, by whomsoever owned, the provision is that the collector or other officer named may enter the same, so far as it may be necessary for the purpose of examining said articles or objects; but the act of Congress gives the officer no authority whatever to enter the building of another for any other purpose than that which the act specifically describes.

Strictly limited as the right conferred is, it is a privilege easily defined; and it is equally clear that the pohibition addressed to the owner or person in charge of the place of business is explicitly confined to the refusal to suffer the officer to enter the building where the articles or objects subject to taxation are made, produced, or kept, for the special purpose particularly set forth in the section. Owners of such a building, or persons having the agency or superintendence of the same, are forbidden to refuse to admit the collector, deputy-collector, or inspector to enter such building for the described special purpose; and the provision is, that if they do so refuse, and do not suffer the officer to examine such articles or objects, they shall for every such refusal forfeit $500.

Persons other than the owner of the building or place of business cannot be held liable to the penalty prescribed in the section, unless it be alleged and proved that he or they had at the time the agency or superintendence of the same, and that it was a building or place where articles or objects subject to taxation were made, produced, or kept, and that the person or persons accused of having violated the prohibition of the section then and there refused to allow the officer to enter the building or place of business for the described purpose, or to suffer him to examine the articles or objects subject to taxation then and there kept in said building or place of business.

Informations for offences or penalties created and defined by statute, ike indictments, must follow the words of the statute; and where there is no substantial departure from that requirement, the information, like the indictment, is in general sufficient, except in cases where the statute is elliptical, or where by necessary implication other constituents are component parts of the offence. Offences created by statute as well as offences at common law consist, with are exceptions, of more than one ingredient; and the rule is universal, that every ingredient of which the offence is composed must be accurately and clearly expressed in the indictment or information, or the pleading will be held bad on demurrer. United States v. Cook, 17 Wall. 168; 1 Bishop, Cr. Pro. (2d ed.), sect. 81; Archb. Cr. Pl. & Ev. (18th ed.) 54.

Orders for the payment of money, including checks and drafts drawn upon any bank, banker, or trust company, are subject to a tax of two cents; and it is understood to be the opinion of the department that the exaction specified is a tax upon the instrument to be paid by the person who makes, signs, or issues the same, or the person for whose use or benefit the order or check was made, signed, or issued. 18 Stat. 310; Rev. Stat., sect. 3418.

Suppose that is so, then it may perhaps be suggested that a bank-check, though paid, if it was made, signed, and issued without being duly stamped with a stamp denoting the amount of the tax, is still an article or object subject to taxation within the meaning of the provision under consideration, unless it can be held that the tax is merged in the penalty prescribed for the violation of the requirement that the instrument shall be stamped at the time it is made, signed, and issued. Id., sect. 3421.

Such a question may arise in a subsequent case; but it is wholly unnecessary to discuss it in the case before the court, as it is not alleged in the information that the paid bank-checks therein described were not duly stamped at the time the same were made, signed, and issued, as required by the act of Congress. Instead of that, the charge in the information is to the effect that the paid bank-checks were then and there kept in the bank or place of business then and there under the charge and superintendence of the defendant; that the collector of the district then and there entered the said bank or place of business for the purpose of examining the said paid bank-checks, and that he, the collector, then and there requested the defendant to suffer him to examine the said paid bank-checks so kept by the said bank then and there in their said place of business; and that the defendant then and there refused the said request of the said collector. Matters not alleged in the information cannot be regarded as confessed by the defendant, as the demurrer only admits what is well pleaded.

Certain bank-checks which had theretofore been drawn upon and paid by the bank, it is alleged in the information, were then and there kept in the rooms and vaults of the bank; and it is proper to say that the said checks are described in the preliminary part of the information as 'articles subject to tax,' but it is nowhere alleged in the information that the said paid bank-checks were not duly stamped with stamps denoting the tak to which the same were subject at the time the checks were made, signed, and issued.

Ingredients or elements not set forth in the information or other criminal accusation cannot be incorporated into the charge against the defendant after he is served with process, and it is equally clear that paid bank-checks which were duly and sufficiently stamped at the time they were made, signed, and issued are not articles or objects subject to taxation, within the meaning of the act of Congress on which the information in this case is founded; and, if so, then it follows as a necessary conclusion that the defendant might lawfully refuse to suffer the collector to examine the paid bank-checks described in the information.

Penal offences created by statute, whether to be prosecuted by indictment r information, must be accurately and clearly described in the pleadings for the recovery of the penalty; and if the offence cannot be so described without expanding the allegations beyond the mere words of the statute, then it is clear that the allegations of the accusation must be expanded to that extent, as it is universally true that no pleading in such a case can be sufficient which does not accurately and clearly allege all the ingredients of which the charge is composed, so as to bring the accused within the true intent and meaning of the statute defining the accusation.

In general, says Chief Justice Marshall, it is sufficient in a libel of information to charge the offence in the very words which direct the forfeiture; but the proposition, we think, is not universally true. If the words which describe the subject-matter of the prohibition are general, including a whole class,. . . we think the charge in the libel ought to conform to the true sense and meaning of the words as used by the legislature. The Mary Ann, 8 Wheat. 380; The Schooner Hoppet and Cargo v. United States, 7 Cranch, 389; 2 Pars. Ship. & Adm. 386.

Examples of the kind where it has been held that it is not sufficient to follow the words of the statute are quite numerous, and they show that many of the exceptions are as extensively recognized and as firmly settled as any other rule of pleading in such cases. Views of a corresponding character are expressed by this court in another case, where the opinion was delivered by Mr. Justice Story. Having stated the rule that it is in general sufficient to allege the offence in the very terms of the statute, he proceeds to remark: We say in general, for there are doubtless cases where more particularity is required, either from the obvious intention of the legislature or from the known principles of law, both of which exceptional requirements are applicable in this case.

Known principles of law require greater particularity to be observed in order that all the ingredients which constitute a violation of the statutory offence may be accurately and clearly alleged; and it is equally clear that the intention of Congress requires the same thing, as it is obvious that Congress never could have intended that paid bank-checks, duly and sufficiently stamped at the time they were made, signed, and issued, should be regarded as articles or objects subject to taxation within the meaning of the provision in the act of Congress under consideration. Brig Caroline v. United States, 7 Cranch, 496; The Schooner Anne v. United States, id. 570; Conkl. Treat. (5th ed.) 546.

Authorities other than those already referred to are not necessary to show that an information to recover a penalty created by statute must state all the material facts and circumstances which constitute the offence, so as to bring the party impleaded precisely within the provisions of the statute defining the offence; but, should it be desired to consult other authorities, it will be found that the following fully support the propositions: 2 Colby, Cr. Law, 114; People v. Wilbur, 4 Park. (N. Y.) Cr. 19; Steel v. Smith, 1 Barn. & Ald. 95; Conkl. Treat. (5th ed.) 548.

Viewed in the light of these suggestions, it is clear that the right conferred upon the officer to enter the building or place of business of another in such a case is strictly limited to a building or place of business in which articles or objects subject to taxation are, at the time of thee proposed entry and examination, made, produced, or kept, and that paid bank-checks, unless it is alleged and proved that they were not duly and sufficiently stamped at the time they were made, signed, and issued, are not articles or objects subject to taxation within the mening of the act of Congress on which the information is founded. Nothing is admitted by the demurrer except what is well pladed in the information; and inasmuch as the only charge of the information in that regard is that paid bankchecks were the and there kept in the said building or place of business described, the court is of the opinion that the information does not set forth any legal offence against the defendant, as defined by the said act of Congress.

Judgment affirmed.


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Mitchell v. Moore

APPEAL from the Circuit Court of the United States for the Southern District of Alabama.

In November, 1873, Catharine Moore, by L. D. Moore, her husband and next friend, filed her bill against Daniel Mitchell, her trustee, charging him with neglect in the execution of his trust, and with loss of the fund.

This trust was created by James Mitchell, her father, who, by will, appointed said Daniel and one Baskin his executors, and bequeathed to them a negress and her child, in trust for Catharine. The hire of these was to be paid to her annually; and if the executors should deem it proper to sell the slaves, then the interest on the purchase-money was to be paid annually to her. The fifth item provides, in case she should survive her husband, the slaves were to be delivered to her, or, if they were sold, the purchase-money was to be paid to her.

The will further provides that the executors shall sell the real estate of the testator, the proceeds to be equally distributed among the children named in the will. 'The share of Catharine to be held in trust by my executors, and the interest accruing annually to be paid to Catharine, as specified in the fifth item, and finally disposed of in the same manner as the property directed in the fifth item.'

James Mitchell died in Sumter County, Alabama, in 1856, and immediately thereafter the executors qualified under the will.

The bill avers that there was a large amount due her for the hire of the slaves, and that the executors, on a settlement with the Probate Court, were charged with the sum of $9,204.60, which, divided into shares according to the will, left them indebted to the complainant in the amount of $1,150.54; that they have neglected for the past eleven years to pay interest, and mingled the fund with their own, and used it, to her great loss; that Baskin resides beyond the jurisdiction of the court; and that said Daniel had 'almost if not the exclusive management of the trust and the property created thereby.'

The prayer is that the trust be established, and an account taken of what is due for principal and interest; that the trustees be removed; and that Mitchell 'may be decreed to pay to your oratrix whatever she may be found entitled to under said trust.'

To this is added a prayer for general relief.

An amended bill avers that the executors had sold the slave girl and her child before the late war, and had never accounted for the hire or the purchase-money.

The answer sets forth that said Daniel accepted the trust purely for the accommodation of his sister, the complainant, and by agreement with his father was not to charge any compensation for his services; that he never received or made any claim therefor; and that by this agreement he was not to be charged with any loss in the execution of the trust, if he should manage it as he did his own affairs.

It admits the sale of the negress and her child in July, 1856, for the sum of $1,375.25, and avers that up to 1862 said Daniel accounted annually for the interest thereon; that payment was not subsequently made, as there was no communication during the war between Alabama and Texas, in which latter State his sister then resided; and that the money was loaned out on good security, and was during the war paid to him in Confederate money, then the only currency. It further avers that 'all of the said money, together with a large sum owned by defendant, became valueless and lost to him;' that the complainant's distributive share, $1,150.54, was loaned out on good security, and the interest thereon annually paid up to 1862; and that the amount due on the loan was paid to him in March, 1863, in Confederate currency, which at that time was worth hree and a half for one in United States currency.

A decree was rendered against Mitchell, removing him as trustee, and adjudging that he pay the principal to a new trustee.

Mitchell appealed to this court, assigning for error the ruling of the court below that he was liable for the amount decreed against him, and that the principal amount be paid to a new trustee.

The remaining facts are stated in the opinion of the court.

Mr. Philip Phillips for the appellant.

Mr. Conway Robinson and Mr. Leigh Robinson, contra.

MR. CHIEF JUSTICE WAITE delivered the opinion of the court.

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Mitchell v. Moore/Opinion of the Court

There can be no doubt that the trust fund in this case was always used by the defendant as his own, and that all investments were made by him in his own name, with nothing whatever to indicate an appropriation to the purposes of the trust. When inquired of by the complainant in October, 1860, in respect to the trust, the defendant wrote: 'If you will be contented I will fix your money so that you can see it any instant. But as the time is now, it is in a better fix now than it would be if you had it.' In his deposition, taken in his own behalf, when upon cross-examination he was required to make a full, complete, and detailed statement of his execution of the trust, he said: 'I kept no separate account of the trust fund after it came into my hands. I accounted for the annual interest to the agent of the complainant, and was ready to pay over the principal in the event of the death of A. L. D. Moore, which was the time fixed by the will of my father for me to pay over to my sister the corpus of the trust. I thought this was all I was required to do, and, therefore, kept no separate and distinct accounts of the trust fund, and cannot give the dates of the loans, or other particulars inquired about. . . . When necessary, I put some of my own funds with it to make out the sum a borrower might wish to get, and kept no separate accounts of it, and can furnish none.'

Under these circumstances, clearly the defendant is in no condition to charge the trust with the losses he has sustained from payments to him in Confederate money. As long ago as 1681, it was said in argument, and approved by the then Lord Chancellor of England, in Dashwood v. Elwall, 2 Ch. Cas. 56, that 'if an executor hath orphan's or other men's money in his hands, and hath power to lend it, if he do so, and take security in his own name, which faileth, he shall answer the debt in his own money, unless that he indorse the bond, or do some other thing, at the time of lending the money or taking the security, which may doubtless declare the truth,' and this because 'heed was to be taken that we make not such examples under which dishonest men may shelter themselves.' If this were not the rule, it was also said, 'It will be in the power of one who deals for several persons and for himself also, taking security by bond in his own name, if any of the debts fail, to gratify whom he pleaseth with good securities, yea, himself, and play the securities, good or bad, into his own hands, or what he pleaseth.' Thus were set forth in the language of the time a rule, and the reason of it, by which courts of equity have universally required trustees to account; and it can never be departed from, without danger that wrong will be done. Massey v. Banner, 4 Madd. 413; Wren v. Kirton, 11 Ves. Jr. 377; McAllister v. The Commonwealth, 30 Pa. St. 536; Stanley's Appeal, 8 id. 431. This disposes of the first assignment of error. There is no dispute as to the amount of the trust fund, and no complaint is made of the rate of interest for which the defendant has been decreed to account, if he is liable to account at all.

The second assignment of error is to the effect that the court could not direct the payment of the principal sum to a new trustee, because such a decree was inconsistent with the specific relief prayed for. The prayer is for an account, the removal of the old trustees, the ayment to the complainant of the money she is entitled to, and for general relief. There is no specific prayer for the appointment of a new trustee, or the payment of the principal of the fund to him when appointed; but such relief is necessary, in order to carry into full effect an order for the removal of the old trustees.

Decree affirmed.

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Given v. Hilton

APPEAL from the Supreme Court of the District of Columbia.

The bill in this case was filed by John Emory Hilton and certain other heirs-at-law and next of kin of John P. Hilton, against John T. Given and Carberry S. Hilton, his executors and others, to obtain judicial construction of his last will and testament. It prayed for an injunction restraining the executors from selling any portion of the real estate until they should first have applied the personal estate to the payment of debts and the legacies specified in the will, and, in the event of any deficiency, then to sell no greater portion of such real estate than would be sufficient to discharge such debts and legacies.

The court decreed that the debts due by the deceased were to be first paid, then the legacies, and both from the personal estate, if that be sufficient; but if not, then that the real estate be resorted to, but only to discharge any deficiency, and that the residue of said real estate be equally divided among the heirs.

From this construction of the will the defendants appealed to this court.

This will, which was duly attested and admitted to probate, is as follows:--

'In the name of God, amen. I, John P. Hilton, of Washington City, in the District of Columbia,. . . do. . . make and publish this my last will and testament, in manner and form following, that is to say:. ..

'After my debts and funeral charges are paid, my worldly estate, with which it hath pleased God to intrust me with, I devise and bequeath as follows:--

'Item. As soon after my decease as possible, I direct that my debts and funeral expenses be paid out of any portion of my estate which may first come into the hands of my executors hereinafter named.

'Item. Secondly, I direct that all of my estate, except such as is hereinafter otherwise devised and bequeathed, be sold by my executors at as early a day as practicable, upon such terms and conditions as may seem best in their judgment for the best interest of all herein concerned, and that the proceeds arising therefrom shall be divided in the following manner and proportions as they are first herein named, written, and stated, as far as the amount realized from the sale of my said estate will allow, viz.:

'Item. I give and devise unto my king and obedient son, Carberry S. Hilton, and my grandchildren, John Perry Hilton and Harry Slicer Hilton, sons of Carberry S. Hilton, all that part of lot eight (8) of Davidson subdivision of square two hundred and fifteen (215), fronting on 14th Street west, between L and M Streets north, with the improvements; that is to say, one-half of the said lot and improvements to the said Carberry S. Hilton, in fee-simple, and the remaining half as he may choose, to him the said Carberry S. Hilton, in trust for the sole use and benefit of his said children, John Perry Hilton and Harry Slicer Hilton, in fee-simple, to be equally divided between them.

[Here follows a number of pecuniary legacies.]

'Item. I give and bequeath unto my kind, affectionate son, Carberry S. Hilton, all the rest and residue of my estate of which I may die seised or possessed, which is not herein otherwise devised and bequeathed, such as moneys, bonds, stocks, judgments, notes, household furniture, and all personal effects of every description, and not herein otherwise disposed of, for his sole use and benefit and that of his children.

'Item. I direct that the rents accumulating from my estate, until such time as my executors shall have disposed of the same, shall be distributed as follows: After deducting all expens § for repairs, taxes, and insurance, the same shall be equally divided among my four children; namely, Carberry S. Hilton, Ann Terring Smith, John Emory Hilton, and Laura R. Morsell.

'And, lastly, I do hereby constitute and appoint my dear son, Carberry S. Hilton, and my esteemed friend, John T. Given, of Washington City, District of Columbia, to be sole executors of this my last will and testament, revoking and annulling all former wills by me heretofore made, ratifying and confirming this and none other to be my last will and testament, requesting that my son, Carberry S. Hilton, the first-named executor of this my will, that he make no charge for any service he may render in the execution thereof.

'In testimony whereof, I have hereunto set my hand and affixed my seal this nineteenth day of March, in the year of our Lord eighteen hundred and seventy-three.

[SEAL.] 'JNO. P. HILTON.'

Mr. Richard T. Merrick and Mr. William F. Mattingly for the appellants.

Mr. Walter S.C.ox and Mr. John J. Johnson, contra.

MR. JUSTICE STRONG delivered the opinion of the court.

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Given v. Hilton/Opinion of the Court

The ultimate question in this case is what passed under the residuary clause of the testator's will. It can be answered intelligently only after a careful examination of all the provisions of the instrument, and an ascertainment therefrom of the testator's general scheme. That he intended to make a complete disposition of all his property, leaving none to pass under the intestate laws, is abundantly manifest. He commenced by declaring that, after his debts and funeral charges were paid, he devised and bequeathed the worldly estate with which it had pleased God to intrust him. Next followed a direction that these debts and expenses should be paid, as soon after his decease as possible, out of any portion of his estate that might first come into the hands of his executors. Then followed a direction that all his estate, not otherwise devised and bequeathed (all except a single lot of ground devised to a son), should be sold as soon as practicable, and that the proceeds thereof should be divided in a manner and in proportions described thereafter. Here the real estate and the personalty are commingled and treated as one fund. All is to be converted into money, and all is to be distributed; and, to guard against the least intestacy, and insure that all his estate should pass under his will, by a subsequent disposition he disposed of the rents that might accumulate from his estate, before the executors should sell it, by distributing them among his children. These dispositions are utterly inconsistent with an intention to leave any portion of his estate to descend under the intestate laws; and they accord with the general rule that no presumption of an intent to die intestate as to any part of his property is allowable when the words of a testator's will may fairly carry the whole. Stehman and Others v. Stehman, 1 Watts (Pa.), 466. The law prefers a construction which will prevent a partial intestacy to one that will permit it, if such a construction may reasonably be given, Vernon v. Vernon et al., 53 N. Y. 351; and certainly when, as in this case, the intent to make a complete disposition of all the testator's property is manifest throughout his will, its provisions should be so construed, if they reasonably may be, as to carry into effect his general intent.

We do not mean to be understood as asserting that an apparent general intent to make by his will a complete disposition of all a testator's estate can control particular directions plainly to the contrary, or enlarge dispositions beyond their legitimate meaning. What we do assert is, such a general intent is of weight in determining what was intended by particular devises or bequests that may admit of enlarged or limited constructions.

It has already been noticed, the testator in this case ordered that all his estate, except a single lot, and confounding realty and personalty, should be sold by his executors as soon as practicable. This sale he directed to be made upon such terms and conditions as might seem best in their judgment for the interests of all concerned in the will; and he directed the proceeds arising therefrom to be divided in the manner and proportions, 'as first written, named, and stated' in the will, as far as the amount realized from the sale would allow. Then followed a devise of the excepted lot, and various pecuniary bequests, succeeded by a residuary legacy to his son, given in the following words: 'I give and bequeath unto my kind and affectionate son, Carberry S. Hilton, all the rest and residue of my estate, of which I may die seised or possessed, which is not herein otherwise devised and bequeathed, such as moneys, bonds, stocks, judgments, notes, household furniture, and all personal effects of every description, and not herein otherwise disposed of, for his sole use and benefit and that of his children.'

If by this residuary clause the testator intended to give only the residue of that which was personalty immediately preceding his death, then he died intestate as to all his real estate not needed for the payment of his debts and other legacies, and as to the surplus of the proceeds of its sale not necessary for those payments. Then there is a resulting interest in all his children as collectively heirs-at-law; and, as that which was personalty at his death is, by admission, largely insufficient for the payment of those debts and legacies, the residuary legatee takes nothing under the bequest to him, for the personal property is first to be applied to discharge the debts and legacies. But, on the other hand, if by the direction to sell all his estate the testator intended its conversion into personalty out and out, or for all intents, and not merely for the payment of the legacies prior to the residuary gift, the residuary clause carried all that may remain after those legacies shall be paid.

It is a fundamental question, therefore, whether the testator's direction to his executors to sell 'all his estate' worked an absolute conversion of his realty into personalty. It is undoubtedly established doctrine that when a will directs conversion of realty only for certain purposes, which are limited, for example, for the payment of particular legacies, and follows the direction by a bequest of the residue of personal estate, the conversion takes place only so far as the proceeds of the sale are needed to pay the legacies prior to the residuary one, and the gift of the personalty will not carry the produce of the sale of the lands in the absence of a contrary intent plainly manifested. The surplus or excess retains the quality of realty, and is transmitted either by a devise of the realty, if there be one, or descends under the intestate laws. Hence it is often a question, and frequently a difficult one, whether the direction to sell was for a limited purpose, or for all purposes, and, consequently, whether the testator's intent was to impress upon all the proceeds of the sale the quality of personalty. There are certain things which are considered indicative of an intent to cause a complete conversion. It has been held that a general direction to sell and apply the proceeds indiscriminately to the payment of debts and legacies operates as a conversion out and out. Roper on Legacies, 341, 342, et seq.; King v. Woodhull, 3 Edw. (N. Y.) 82; Durour v. Motteux, 1 Ves. 320.

Blending the proceeds of realty and personalty in one fund for the payment of debts and legacies is generally regarded evidence of an intention to give to the proceeds of a sale ordered the character of personalty throughout, though not a conclusive indication in all cases. These indications exist in the will before us, and, were it necessary, they might be called in aid of its construction; but, after all, little assistance is derived from general rules in the construction of a will. The intent of a testator is to be sought in the instrument itself. In making it he does not often have i mind any particular rules of construction applied to other wills. He uses those expressions which he supposes convey his own thought and wishes.

Turning, then, to the will before us, the first thing noticeable is that the direction to sell was positive, and that it comprehended all the estate. The testator must have known that his personal property was largely insufficient to pay his debts, funeral expenses, and the pecuniary legacies he proposed to give. Yet his order was, not to sell so much of his real estate as might be necessary for satisfying debts and certain legacies, not that what should prove lacking of personalty should be supplied from sales of realty, but all was directed to be sold, whether necessary for the payment of legacies or not; and in the direction he recognized the interest of the residuary legatee as fully as he did the interests of any other legatee therein. The executors were required to sell on such terms and conditions as, in their judgment, might seem best for the interests of all concerned in the will. The residuary legatee was one of those concerned. Why consult his interest, if, as a beneficiary under the will, he had no concern in the sale, if by virtue of the legacy to him he was to have no portion of the proceeds of the sale, and if what remained after payment of the legacies prior to his was intended to continue realty, and descend under the intestate laws?

The will further directed that the proceeds of the sale, i. e. the whole proceeds, should be divided in the manner and proportions first in the will named, written, and stated, as far as the amount realized would allow. It is not quite clear what was meant by this direction: but it rather seems the intent was, that, if the sum for which the property might be sold should prove insufficient to pay all the legacies in full, they should be paid in the order named; that is, that the legatee first named should be first paid, and so on, in the order in which the different beneficiaries were mentioned, down to the residuary legatee. If this is not so, the word 'first' can have no significance; and then the testator intended that legacies to his children and grandchildren should abate ratably with his gifts to strangers: but, however this may be, it was a fund arising from the sale of the testator's whole estate that was to be divided among legatees; and the residuary bequest to the son, Carberry S. Hilton, was as truly a legacy as any one of the gifts that preceded it. We can discover nothing, therefore, in this clause of the will that indicates an intent to effect only a partial conversion, or merely a conversion for the payment of those legacies which preceded the residuary bequest. On the contrary, the more reasonable and the true interpretation, we think, is that the testator meant to direct a complete conversion, to all intents, of his entire property into personal estate. If so, the residuary bequest, even if it was only a legacy of his personal estate, carried to the legatee not only that which was personalty at his death, but that which by the conversion he ordered became personalty.

But it is not to be admitted as certain that the subject of the residuary bequest was personal property alone. Certainly the bequest is not an ordinary gift of the residue of personalty. Its phraseology is very peculiar. Were it not for the enumeration of 'moneys, stocks, judgments, notes, household furniture, and all personal effects of every description' (most of which, if not all, may have been the product of the sales of the real estate ordered to be sold), the residuary clause, beyond doubt, would be broad enough to carry real estate, as well as all personalty. It is doubtless true that in the construction of wills, as well as of statutes, where certain things are enumerated, and a more general description is coupled with the enumeration, that description is commonly understood to cover only things ejusdem generis with the particular things mentioned. This is because it is presumed the testator had nly things of that class in mind; but this rule of construction rests on a mere presumption, easily rebutted by any thing that shows the larger subject was in fact in the testator's view. In the present case, it is quite plain the testator had in mind all his estate, whether realty or personalty, when he made the disposition of the residue. Indeed, he must have had his real estate, or the proceeds of his sale, mainly in view; for, as we have said, he knew that his personal estate would be exhausted by the payment of debts and prior legacies. And this appears in the language he used. He gave unto his 'kind and affectionate son' all the rest and residue of his estate of which he might die seised or possessed, not otherwise devised and bequeathed (enumerating some species of personal effects), and all personal effects of every description, not otherwise disposed of by the will. This included not only that which he possessed, namely, personalty, but also that of which he was seised,-his realty. The form of his expression denotes that he had before his mind at the time alike every thing that was real and every thing that was personal; and, in making the bequest, he used the most comprehensive language which could have been adopted.

The residuary gift, therefore, ought not, in view of the whole will, to be construed as embracing only the remainder, if any, of that which was personalty at the death of the testator. Its scope was larger. It embraced all of the testator's estate, both realty and personalty, not devised or bequeathed by the preceding dispositions of the will.

This construction is fortified by another consideration. Carberry S. Hilton, the residuary legatee, was a favorite son of the testator. This appears from the manner in which he is more than once spoken of in the will. No other pecuniary legacy is given to him; and it cannot be believed that his father intended, by his residuary bequest, to make to him a barren gift, and leave a portion of his estate to descend under the intestate laws.

We conclude, therefore, that the Supreme Court of the District erred in its construction of the will and in the decree made, so far as it was ordered that any portion of the residue of the testator's estate, after the payment of his debts and of the legacis prior to that given to the residuary legatee, should be equally divided among the heirs, and in not decreeing that the whole of the estate, except the lot devised, both real and personal, after the payment of those debts and legacies, passed, under the residuary clause, to Carberry S. Hilton.

Decree reversed, and the record remitted with instructions to enter a decree in accordance with this opinion.

title: Given v. Hilton/Opinion of the Court


text: Talk:Given v. Hilton/Opinion of the Court


text:
The Wanata

APPEAL from the Circuit Court of the United States for the Southern District of New York.

This was a libel against the 'Wanata,' to recover $23,000 damages caused by her colliding with the pilot-boat 'Josiah Johnson' about nine o'clock P.M., on the 6th of March, 1869. The libellant, Johnson, was the owner of the pilot-boat, and the others were the owners of certain clothing and other property on board of her. The 'Wanata' was on a voyage from New York to Charleston, and the wind was very strong from the north-west. The pilot-boat, having split her foresail, was at anchor off the coast of New Jersey, about half a mile from the shore, in four fathoms of water, and from fifteen to twenty miles north of Barnegat Light. She was struck on her starboard side by the 'Wanata,' and sank in a few minutes. The libellants allege that the collision happened through the fault of the 'Wanata,' in not keeping a proper lookout, and in sailing at too great a rate of speed. The claimants maintain that the collision was caused by the negligence of the pilot-boat in anchoring at an improper place, in not exhibiting a proper light, and in not keeping a proper watch on her deck.

The other facts in the case are stated, and the assignment of errors set forth in the opinion of the court.

The vessel was seized by the marshal, and was subse quently released from his custody on her claimants entering, with sureties, into a stipulation for costs in the sum of $250, and into one for value in the sum of $16,000, her appraised value.

The District Court was of opinion that the 'Wanata' was wholly at fault, and entered a decree against her, awarding the libellants $16,000 on account of the loss of the pilot-boat, clothing, and interest, and $305.27 as costs.

The claimants appealed, giving bond for $2,000 in the usual form with the same sureties. The Circuit Court, on appeal, decreed that the libellants recover against the stipulators for value $16,000, damages by reason of the collision, and against the stipulators for costs and on appeal for the costs in the District Court, amounting, with interest, to the sum of $323.12, and also the costs in the Circuit Court, which, including the interest on the amount of the damages aforesaid from the time of the decree in the District Court, were taxed and adjusted at the further sum of $1,085.35, amounting altogether to $17,407.47.

The claimants having entered into an undertaking with sureties in the sum of $36,000, conditioned to prosecute their appeal to effect, and answer all damages and costs, upon failure to make it good, brought the case here.

Mr. Joseph H. Choate for the appellants.

The collision was the result of inevitable accident, and the 'Wanata' was therefore guilty of neither fault nor negligence. The Virgil, 2 Wm. Rob 201; 1 Pars. Marit. Law, 187; The Thornly, 7 Jur. 659; The Ebenezer, id. 117; The William Lindsay, 29 L. T. N. S. 355; The Amio and The Amelia, id. 118; The Grace Girdler, 7 Wall. 196; The Morning Light, 2 id. 550.

The 'Wanata' having been released upon the filing of a stipulation for value in the sum of $16,000, the stipulation took the place of the res in the further progress of the cause, and bore no interest. Therefore, the decree of the Circuit Court adding interest to that, and including it in the costs, is wholly without precedent or authority. Hemmenway v. Fisher, 20 How. 258; The Ann Caroline, 2 Wall. 538; The Steamer Webb, 14 id. 406.

The circumstance that the decree of the District Court was for the exact amount of that stipulation does not alter the principle or increase the power of the Circuit Court. All that the latter had before it representing value was the stipulation which had been substituted for the res.

Nor could interest as damages in excess of the value of the res be awarded against the obligors in the bond, upon appeal from the District to the Circuit Court; for interest is neither costs nor damages, within the meaning or purpose of that bond. A bond given for costs and damages on appeal in such a suit as this does not add to the original stipulation for value, but covers such damages only as the appellee is entitled to recover; and the above-cited cases establish that he is not entitled to interest. In admiralty, the cause in the Circuit Court is heard de novo; and that court awards damages by an original decree, and, of course, without interest. The bond for costs and damages on appeal might be made available not only for the costs of appeal, but for a deficiency up to and within the amount of the stipulation for value occasioned by the insolvency of the stipulators, but never in excess of it, by way of interest or otherwise.

It is obvious, in this case, that the learned circuit judge, in his opinion, meant only to award as damages the $16,000, the amount of the res. The addition of interest crept into the decree. But even there it is not adjudged as damages. It is awarded specifically as interest and as part of the costs, for which there was no power in that court.

Of course, in The Ann Caroline and The Steamer Webb similar bonds for costs and damages on appeal were given as in this case, and in the same form. No appeal could be taken without them. A d if the value of the res in court could be thereby increased, the appellees in those cases would not have been limited, as they were strictly, to the amount of the original stipulation for value; but this court would have awarded, in addition, interest on that amount, at least to the extent of the appeal-bond, after providing for the costs on appeal. The question, in any form in which it may be presented, has been determined by this court.

As to the decree of the District Court, so far as it awarded costs in excess of the $250 stipulated for costs, it will be conceded to be erroneous.

If interest should be claimed in this court upon the decree of the Circuit Court rightly adjusted, it is submitted that a review of the evidence will more than confirm the doubts expressed in the opinion of the circuit judge as to the damages awarded, and satisfy this court that $16,000 now, without interest, is an ample indemnity for all the losses sustained by the libellants. In the exercise of the discretionary power reserved in this court, as laid down in Hemmenway v. Fisher, 20 How. 255, to add further damages by way of of interest to the $16,000 would give the libellants more than they ought to have, and would work injustice to the appellants.

Mr. William Allen Butler, contra.

The courts below having upon the same proofs found that there was no fault on the part of the pilot-boat, and that the collision was caused solely by the fault of the 'Wanata,' this court, unless mainifest error is shown, will not reverse the decrees. Every presumption is in favor of them. The Juniata, 93 U.S. 337; The Hypodame, 6 Wall. 216; The Grace Girdler, 7 id. 196; The Quickstep, 9 id. 665; The Spray, 12 id. 366; The Commerce, 16 id. 33; The Ship Potomac, 2 Black, 581; The Scioto, Daveis, 359.

The attempt to excuse the schooner on the ground of inevitable accident wholly fails. The Morning Light, 2 Wall. 550; The Virgil, 2 Wm. Rob. 201.

There is no error as to the amounts awarded. The decree of the District Court was properly limited to the amount of the stipulation for value. There was no decree against the stipulators for either the $16,000 or the costs, but only against the schooner, with a direction that the amount awarded, with the costs, be paid out of the proceeds of the stipulations for costs and value, when paid into the registry of the court. Before any such payment was made, the appeal to the Circuit Court was taken. There was therefore no error.

The bond in the sum of $2,000 given by the claimants, on appeal to the Circuit Court, was for all damages and costs which should be awarded against them, as appellants, if they failed to make their appeal good. The total amount decreed by the Circuit Court was $17,407.47, a sum less than the amount of the stipulation and appeal-bond.

The bond given on the appeal to this court is for the sum of $36,000, and is conditioned to answer all damages and costs. The interest on the amount of the decree of the Circuit Court is the only addition to be made by way of increase to the damages below, and to this libellants are entitled.

Rule 29 of the General Rules of this court provides that supersedeas bonds in the Circuit Court must be taken that the appellant shall prosecute his appeal, and answer all damages and costs if he fail to make his plea good; and that 'such indemnity, including 'just damages for delay,' and costs, must be for the whole amount of the decree, and interest, on the appeal.' The plain distinction between the present case and The Ann Caroline and The Steamer Webb, cited by the appellants, is, that in those cases the actual assessment and award exceeded the amount of the stipulation for value. Here the amount was carefully restricted to the stipulated value; and the only question is, whether interest as well as costs shall follow an affirmance of the decree of the Circuit Court. There is no ground for depriving the libellants of interest.

MR. JUSTICE CLIFFORD delivered the opinion of the court.

title: The Wanata


text: Talk:The Wanata

title: Talk:The Wanata