« AnteriorContinuar »
44 Me. 441. Grant that and still it is a mere presump- so indorsing the note may be charged as an original tion of fact which may be rebutted and controlled by promisor, but if after the payee became the holder, then parol proof that it was not there when the note was such a party can only be held as guarantor, unless the delivered, or that it was made at a subsequent date. terins of the indorsement show that he intended to be Essex Co. v. Edmunds, 12 Gray, 278.
liable only as second iudorser, in which event he is entiThird person indorsing a negotiable promissory note tled to the privileges accorded to such an indorser by before the payee, and before it is delivered to take the commercial law. effect, cannot be held as first indorsers, for the reason Whether regarded as a second indorser or an origthat they are not payees, and no party but the payee inal promisor, it is not necessary to allege or prove any of the note can be the first indorser and put the in | other than the original consideration, but if it be strument in circulation as a commercial negotiable attempted to charge the party as a guarantor, a dissecurity. Such a third party may, if he chooses, take tinct consideration must appear. Essex Co. v. Edupon himself the limited obligation of a second in | munds, 1:2 Gray, 277; Brewster v. Silence, 4 Seld. 207. dorser, but if he desire to do so he must employ proper Viewed in the light of these suggestions it is clear terms to signify that intention, the rule being that a that the first assignment of error must be overblank indorsement supposes that there are no such ruled. terms employed, and that he is liable either as prom 2. Territorial courts are not courts of the United isor or guarantor.
States within the meaning of the constitution, as apBlank indorsements may be filled up to express the pears by all the authorities. Clinton v. Englebrecht, legal contract, and the true commercial rule is that 13 Wall. 447; Hornbuckle v. Toombs, 18 id. 653. when the blank is filled the instrument shall have the Witnesses in civil cases camot be excluded in the character of a written instrument and not depend on courts of the United States because he or she is a parol proof to give it effect nor be subject to be al party to, or interested in, the issue tried, but the protered or contradicted by parol proof. Indorsements vision has no application in the courts of a territory of the kind are or may be valid, as the law presumes where a different rule prevails. 13 Stats. at Large, 351; that such an indorser intended to be liable in some Bowman v. Noyes, 12 N. H. 305; Bridges v. Armour, 5 form. It does not chargo him as indorser unless the How. 94; Bailey v. Knapp, 7 Harris, 193; Halz v. Snyterms employed are proper to express such an intent: der, 2 Casey, 512. but if any one not the payee of a negotiable note, Suppose that is so, then the two defendants called or in the case of a note not negotiable, if any party as witnesses were rightly rejected as wituesses. 13 writes his name on the back of the note, at or sufli Stats. at Large, 351. ciently near the time it is made, his signature binds Special reference is made to the territorial act of him in the same way as if it was written on the face of the 11th of February, 1870, as inconsistent with the the note and below that of the maker; that is to say, ruling of the court, but the act in question contains he is held as a joint maker or as a joint and several the following proviso: that the act “shall not apply maker, according to the form of the note. Cases also to cases pending at the passage thereof in the district arise where the signature of a third person is subse courts, on appeals from justices of the peace, nor to quent to the making and delivery of the note, and in cases at issue at the passage of the same in the disthat case the third person, as to the payee, is not a trict and probate courts.” Sufficient appears to show maker, but a guarantor, and his promise is void if that the case before the court was at issue in the without consideration, but the consideration may be court below one whole year before the passage of that the original consideration if the note was received at act. his request and upon his promise to guarantee the Tested by these cousiderations it is clear that the same, or if the note was made at his request and for secoud assignment of error must also be overruled, his benefit. 1 Pars. on Cont. (6th ed.) 244.
and that there is no error in the record. Judge Story says that the interpretation ought to be
Judgment affirmed. just such as carries into effect the true intention of the parties, which may be made out by parol proof of
NOTES OF RECENT DICISIONS. the facts and circumstances which took place at the Bank stock: taxation of.- Where there is a valid time of the transaction. If the party intended at the | law imposing tax for the State upon bank stock, there time to be bound only as guarantor of the maker, he will be no judicial interference in its collection on shall not be an original promisor, and if he intended account of informalities or irregularities in the returu to be liable only as a second indorser, he shall never or assessment. Sup. Ct., Georgia, Oct. 24, 1877. Stockbe held to the payee as first indorser. Story ou Prom. holders First Nat. Bank Americus v. Peer. Notes, $ 479.
Contract: void as against public policy.-The manWhere the evidence on these points is doubtful, ob | ager of a corporation agrecd if plaintiff would purchase scure, or totally wanting, courts of law adopt rules certain shares of the capital stock of such corporation of interpretation as furnishing presumptions as to the held by one F., the corporation would give plaintiff actual intention of the parties. Difficulty in that re | employment at an annual salary. Held, that the congard can never arise where the indorsement is special tract was void as against public policy. Sup. Jud. Ct., if it contains words proper to show that the party in Massachusetts, Oct., 1877. Noyes v. Marsh. tended to be liable only as second indorser. Where Fulse pretenses: what does not constitute : must rclate the indorsement is in blauk, if made before the payee, to past or present fact.- A preteuse which is false when the liability must be either as an original promisor or made, but true by the act of the person making the guarantor, and parol proof is admissible to show same, when the prosecutor relies thereon and parts whether the indorsement was made before the indorse with his property, is not a false pretense within the ment of the payee and before the instrument was de statute. To hold a person for trial, who is charged livered to take effect, or after the payee had become with obtaining money or property by false pretense, it the holder of the same; and if before, then the party I must appear that the pretense relied upon relates to a
past event, or to some present existing fact, and not to Suretyship: release of surety by transaction between something to happen in the future. A mere promise creditor and principal.— Where a surety or accommois not sufficient. Sup. Ct., Kansas, July, 1877. Ex dation indorser signs a note, the consideration of which parte Snyder (Cent. Law Jour.).
is that it shall be held by the bank where it is negotiaGift inter vivos: transfer of stock on books of corpo ble and payable, as collateral security for another note ration not followed by delivery of the certificates: cir or draft due said bank, and the bank, without the cumstances rebutting the presumption of a resulting knowledge and consent of the surety, changes the trust and establishing a gift.- A transferred stock to contract by relieving the acceptor and indorser of that B on the books of the corporation. He, however, other note or draft, the security or accommodation never informed B of the transfer nor delivered to her indorser of the collateral note is discharged. Sup. Ct., the certificates of stock, but retained the same in his Georgia, Oct. 9, 1877. Stallings v. Banke of Americus. possession, and they were found, after his death, in an Ultra vires: void lease. - A lease made by certain envelope indorsed with his own name and the name of officers of a corporation, unauthorized so to do, will B. It appeared that B was a niece of A, and had for be declared invalid. Mere silence will not be conmany years been treated and regarded by him as his strued to be acquiescence. Phila. Com. Pleas, Oct., daughter. Held (affirming the decree of the court 1877. Kersey Oil Co. v. Oil C. & A. R. R. Co. below), that the transfer on the books of the corporation vested in B a legal title to the stock; that the PURCHASE OF NOTES BY NATIONAL BANKS. circumstances of the case rebutted any presumption of
SUPREME COURT OF MINNESOTA, SEPTEMBER 21, a resulting trust, and that B was therefore entitled to
1877. the stock. Sup. Ct., Pennsylvania, June 12, 1877. Roberts' Appeal (Week. Not. Cas.).
FIRST NATIONAL BANK OF ROCHESTER V. PIERSON. Life insurance : forfeiture: waiver.- Where it appears that an agent of an insurance company received
The purchase of a promissory note by a national bank for
purposes of speculation is ultra vires, and the bank acau interest premium, over due, and after notice of the quires no title to and cannot recover on a note so pursickness of the insured, held, that it was not error for
Farmers and Mech. Bank v. Baldwin, 14 Alb. L. J. 391, folthe court to charge that if at the time the money was lowed. paid, Lester, the insured, was sick, and that fact was
APPEAL by plaintiff from a judgment in favor of communicated to the agent of the company, notice to A defendant in the District Court of Olmstead the agent was notice to the company, and if after such
county. The action was upon a promissory note made notice the company received the money, they waived
by defendant and held by plaintiff. Such other facts the forfeiture and are liable on the policy. Held, also,
as are material appear in the opinion. that where the assured was in default, and the insur
Jones & Gove, for appellant. ance company drew upon him for the amount of the interest premium then overdue, and the assured was
Chas. C. Wilson, for respondent. in good health at the date of the draft; that this was CORNELL, J. It is expressly found as a fact by the a waiver of the forfeiture, although the draft was paid District Court, before whom this cause was tried withanver the agent had notice of the sickness of the assured. | out a jury, “that the transaction, under which the Sup. Ct., Georgia, Oct. 24, 1877. Piedmont & Arl. plaintiff claimed to have acquired the note in quesL. Ins. Co. v. Lester.
tion, was a purchase and not a discount, or lendNegotiable instrument: certificate of stock in a corpo. ing of money on the credit of it;” and we have no ration : blank indorsement: stolen certificates: negligence. hesitation in saying that, upon the evidence, we fully -Certificates of stock in a corporation are not nego concur with the court that such was undoubtedly the tiable in a commercial sense, and the title to them real nature of the transaction as intended by the parcannot be transferred by one who fraudulently ob ties thereto. As a conclusion of law from this findtained possession of them from the owner. The plain- | ing, the court held “that the plaintiff, a national bank tiff took a blank, instead of a special indorsement of corporation, had no authority to purchase or traflio in the certificates from Maurice, and neglected to have | promissory notes as choses in action, and did not in the stock transferred on the books of the company. law acquire, by the supposed purchase, any title to the Maurice afterward stole the certificates and transferred note in question, and cannot recover upon it in this them to third parties. Held, that the plaintiff was not | action." guilty of such negligence as will require him to bear | Upon the fact as thus found it will be seen that the the loss of tbe stock. Sup. Ct., California. Winter y. only question presented is, whether a national bank, Belmont Mining Co. (San F. L. J.).
created and organized under the act of Congress, "to Partnership: joint owners of steamboat not partners: provide a national currency,” etc., is authorized to retiring joint owner how fur liable.-- When one of the deal or traffic in promissory notes, as a species of perjoint owners of a steamboat disposes of his iuterest by sonal property, or to acquire any title to such paper by bill of sale duly acknowledged and recorded pursuant a purchase, made admittedly not in the way of disto the Act of Congress of July 29, 1850, this is suffi count, or by lending money on the credit of it. In cient notice to parties with whom the boat had pre the case of the Farmers & Mechanics' Bank v. Buldvious dealings, of the withdrawal of the retiring owner win, 14 Alb. L. J. 391, it was expressly held that no from interest and ownership in the said steamboat. power of this character is conferred by a law of this Where no other relation exists between the sharehold- State, which authorizes State banks, organized under ers of a steamboat than that which arises from the its provisions, “ to carry on the business of banking joint ownership, they are not partners, nor is their by discounting bills, notes and other evidences of liability measured by the rules of law which are pecu debt, by receiving deposits, by buying and selling gold liar to the partnership relation. Sup. Ct., Pennsyl- and silver bullion, foreignı coin, and foreign and invania, Oct. 15, 1877. Aduis v. Carroll (Pittsburghland bills of exchange, by loaning money on real and L. J.).
personal securities, and by exercising such incidental powers as may be necessary." And that a purchase of note, and not discounting it or lending money on the such paper, made not in the way of discount, was credit of it," the mere fact of indorsement is not ultra vires, as outside the legitimate scope and pur suflicient to warrant the court in treating the transposes of such institutions.
action as something different from what was inUnder the congressional enactment, the authority | tended. which is given is “to exercise all such incidental pow We fully concur with the court below in its coners as shall be necessary to carry on the business of clusion as to the character of the trausaction in this banking, by discounting and negotiating promissory case. notes, drafts, bills of exchange, and other evidence of It was an ordinary case of note shaving, pure and debt, by receiving deposits, by buying and selling ex- simple, for purposes of gain alone, outside the circle change, coin and bullion; by loaning money on per- of any legitimate banking business, and foreign to sonal security, and by obtaining, issuing and circu any purpose for which those institutions are establating notes according to the provisions of said title." lished. No loan was made or intended, nor was there U. S. Rev. Stats., $ 5, 136.
any discount in the ordinary and legal acceptation of This is substantially like the State statute which that term as applied to the business of banking. was under consideration in the Farmers & Mechanics'
Judgment afirmed. Bank v. Baldwin, supra. The word “negotiating," as used in this section, and likewise in section 29 of
CONSTRUCTION OF PATENT-CLAIM NOT the same statute, is used in its ordinary and appro
ENLARGED BY COURTS. priate transitive sense, to indicate, not an act of purchase, but one of transfer, whereby the negotiated In the case of Keystone Bridge Company v. Phænix paper is passed from the holder or owner and put into 1 Iron Co., just decided by the Supreme Court of the circulation. Hence the incidental power to negotiate United States, the action was for infringing cernotes to the extent necessary to carry on the busi- tain patents for improvements in iron truss bridges. ness of banking, simply implies an authority to real The specification of the inventor's claim in the patent ize upon such commercial paper as the bank may re was for wide and thin bars of a certain kind applied in ceive in the lawful conduct of its business, by nego a certain way. The alleged infringement consisted in tiating, selling, and transferring it by means of a re using cylindrical bars applied in a similar manner. discount, obtained or otherwise.
The court in affirming the judgment of the court beIt gives no implied authority to speculate or traffic low dismissing the complaint says: The patentees conin paper of the character of the note in question, or | fine themselves to “wide and thin" bars. They claim in financial securities of any description. Morse on the use in truss bridges of such bars when the ends are Banking, 4 and 5.
upset and widened in the manner described. It is The powers, therefore, which are conferred by this plain, therefore, that the defendant company, which section, in respect to the acquisition of commercial or does not make said bars at all, but round or cylindribusiness paper, are in no way affected or enlarged by cal bars, does not infringe this claim of the patent. the use of the term “negotiating.”
When a claim is so explicit, the courts cannot alter or In the absence of any authoritative exposition of enlarge it. If the patentees have not claimed the the federal statute in this regard, the principle settled whole of their invention, and the omission has been in the Farmers & Mechanics' Bank v. Baldwin must the result of inadvertence, they should have sought to be regarded as decisive of the present case.
correct the error by a surrender of their patent and an It is suggested by counsel for appellant, that upon application for a re-issue. They cannot expect the the evidence this case is distinguisbable from that of courts to wade through the history of the art and spell the Farmers & Mechanics' Bank v. Baldwin, supra, in out what they might have claimed, but have not that the note sued on here was indorsed by Butler, claimed. Since the act of 1836 the patent laws require the holder at the time of the transfer to the plain that an applicant for a patent shall not only by a speci
fication in writing fully explain his invention, but This fact is undoubtedly a distinguishing, though that he "shall particularly specify and point out the not conclusive test of the character of the transac- | part, improvement, or combination which he claims as tion, and ordinarily raises a strong presumption de- his own invention or discovery." This provision was noting the existence of the relation of lender and inserted in the law for the purpose of relieving the borrower, between the bank and the party so making courts from the duty of ascertaining the exact invention the transfer, and thereby indicates that the parties of the patentee by inference and conjecture, derived really intended a loan of money upon the credit of the from a laborious examination of previous inventions, paper so indorsed. And we have no doubt when such , and a comparison thereof with that claimed by him. is the intention, “a borrower may,” as was held in This duty is now cast upon the Patent Office. There Smith v. Exchange Bank of Pittsburg, cited by appel his claim is, or is supposed to be, examined, scrutinlant, “obtain the discount by a bank of the existing |ized, limited, and made to conform to what he is ennotes and bills of others of which he is the holder, as titled to. If the office refuses to allow him all that he well as of his own paper made directly to the bank." | asks, he has an appeal. But the courts have no right And that the bank will thereby acquire a valid title to enlarge a patent beyond the scope of its claim as to such paper because it makes the purchase by dis allowed by the Patent Office, or the appellate tribunal count or through the exercise of its discounting pow to which contested applications are referred. When ers. But where the acts of the parties, and the cir- | the terms of a claim in a patent are clear and distinct cumstances surrounding the transaction clearly rebut (as they always should be) the patentee, in a suit any presumption arising from the indorsement, and brought upon the patent, is bound by it. Merrill v. indisputably indicate the real nature of the transac- | Yeomans, 94 U. S. 573. He can claim nothing beyond tion, intended by the parties to be, in the language of it. But the defendant may at all times, under proper the court below, “an out and out purchase of the pleadings, resort to prior use and the general history of the art to assail the validity of a patent or to restrain joint obligors (in this case partners liable on a firm its construction. The door is then opened to the plain- note) dies, the legal remedy is against the surviror's tiff to resort to the same kind of evidence in rebuttal; only, and the estate of the deceased is discharged at but he can never go beyond his claim. As patents are law; though his administrator may be proceeded procured ex parte, the public is not bound by them, against in equity upon showing that the remedy against but the patentees are. And the latter cannot show the survivors has been exhausted, or that they are inthat their invention is broader than the terms of their solvent. But where, during the pendency of an acclaim; or, if broader, they must be held to have sur tion against alleged partners upon an alleged obligarendered the surplus to the publio.
tion of the firm, one of the defendants died, and his administrators asked and obtained leave to defend,
filed a separate answer, and litigated the cause upon RECENT AMERICAN DECISIONS.
the merits. Held, that this was a waiver of all objecSUPREME COURT OF WISCONSIN.*
tions to the plaintiff's right to proceeed against the
estate at law instead of in equity; though in order to CHATTEL MORTGAGE.
recover against the administrators, plaintiff must alConstruction of danger clause.-A clause in a chattel lege (by supplementary complaint), and must prove, mortgage, providing that if the mortgagee shall at any that the surviving obligor is insolvent. Sherman v. time deem bimself insecure, he may take possession Kreul. Decided June 2, 1877. of and sell the property, vests in him an absolute discretion; and his right does not depend upon his hav
PARTNERSHIP. ing reasonable ground for deeming himself insecure. 1. Contract rendering parties partners : for what partHuebner v. Koebke. Decided Sept. 11, 1877.
nors liable.- By the terms of a written contract beCONTRACT.
tween A, B and C as parties of the first part, and X Construction of: for joint adventure.-G. had con
and Y as parties of the second part, the former covtracted with R. and S. that the last-named parties
enanted with the latter to “commence immediately should enter on G.'s land during the then next win
and work faithfully and constantly for X and Y, until ter, and cut timber to the amount of about 1,500,000
the logs there mentioned should be marketed; that feet, haul and saw the logs, run the timber to market,
they would take charge of the several logging camps and there divide it so that one-third should belong to
of X and Y, to be started at such points as the latter G. and the other two-thirds to R. and S., on condition
should direct, in a certain county, hire men to run the that for every thousand feet received by G. he should
same, cut, haul, bank, and run to a certain place, all allow R. and S. $12, and for the remainder they should
the pine logs they could get out during the then apallow G. $1.50 per thousand as stumpage. For the
proaching fall and winter, and do all said work in a purpose of performing this contract, R. and S. then
good and suitable manner, and for the best interests contracted between themselves that R. should log and
of all the parties to said contract. In consideration saw 1,500,000 feet of lumber, more or less, during the
thereof, X and Y covenanted on their part to pay for following winter, and should run the same to market;
all stumpage upon the logs so to be cut, for all hired that S. should pay R. “$14 for each and every thou
help and all teams necessary for getting out such logs, sand so put in and run to market,” by advancing $2,500
and for all supplies and expenses necessary in cutting for the use of the logging camp during the winter, the
logs and getting them to market; and that when the balance to be paid from the avails of the lumber; and
logs were sold by them (X and Y), all the money so that the profits or losses should be divided equally be
paid out by them should first be deducted from the tween the two parties. Held, (1) that the contract
amount paid for the logs, and the balance, with all between R. and S. is to be construed with reference
teams and supplies then remaining on hand, should be to their prior contract with G. relating to the same
divided in equal portions between the two parties lumber. (2) That by the clear terms of the second
above named, and the portion or share belonging to A, contract, R., upon fulfillment thereof on his part, was
B and C should be “full payment and compensation for entitled to receive from S. $14 per thousand upon all
the work and labor of said " A, B and C. Held, that the lumber so manufactured and run to market, in
this agreement constituted all the parties thereto partcluding the one-third which became the property of
ners, and rendered X and Y liable for supplies furG.; and that the expense of stumpage and the profits
nished to A, B and C upon the order of the latter for of the transaction were to be divided equally between
the use of the logging camps while engaged in getting
out logs under said contract. Upham v. Heuett. said R. and S. Richardson y. Single. Decided June 2, 1877.
2. For what partners not liable.- For supplies furINDORSEMENT.
nished to A, B and C for the use of their logging Contract of, not disputable by parol.- One who has camps while engaged in getting out logs for other parindorsed a note in blank, without qualification ex- ties, and not under said contract, X and Y are not pressed in the writing, cannot show by parol, as against | liable. Ib. Decided July 17, 1877. the person to whom he delivered it, a contemporaneous agreement between them that he should not be
RECENT ENGLISH DECISIONS. liable as indorser, where no mistake or fraud in procuring the indorsement is alleged. Charles v. Denis.
CASES RELATING TO WILLS AND TRUSTS. Decided June 2, 1877.
Construction of will: “children of A, or their issue :" JOINT OBLIGATION.
substitution.- A testator gave his personal estate to Remedy at law against survivors only: waiver by rep- all and every the children of my uncle R. F., or their resentative of deceased obligor.- Where one of several
issue, in equal shares," and all his real estate upon * From 0. M. Conover, Esq., State Reporter. To appear trust for A. F. for life, and after her death to sell the in 42 Wisconsin Reports.
same aud hold the proceeds “upon trust for all and
every the children of the said R. F., or their issue, in will contained no directions as to the time of converequal shares per capita." R. F. had had six children, sion, consisted of (among other things) three second two only of whom were living at the date of the will. mortgage bonds of an American railway company, of The other four all left children. Held, that the pro which the market price was £153 per bond at the time ceeds of the real estate were divisible into six equal when the will was proved. After this ti parts, of which two went to the surviving children of clined continuously, and sixteen months after the tesR. F., and the other four to the children per stirpes of tator's death the executors sold two of the bonds for the four children of R. F. who had died before the £52 a piece. A suit to administer the estate was indate of the will. Ch. Div., Feb. 17, 1877. Re Sibley's stituted by three of the four person who were residuTrusts, 37 L. T. Rep. (N. S.) 180.
ary legatees under the will, and when the suit came to Construction of will: descendants: whether “descend a hearing, the third bond, which still remained anainls" in infinitum or only children: context: gift after sold, was worth only £10 in the market. One of the the death of a person to whom nothing is expressly given: residuary legatees had pressed the executors to sell implied life estate : accumulations: intestacy.-A tes- | the bonds, but the other jthree had either assented or tator gave, devised and bequeathed to trustees the had expressed no dissent to the postponement of the whole of his property, real and personal, upon trust sale. The bill prayed that the executors might be de(after a legacy to his wife of £1,500 and of all his clared guilty of willful default in not selling the bonds household furniture and effects) in the event of his at once, and liable to make good to the estate their death without lawful issue, to divide the same into value at the time of the testator's death. Held (aftwelve equal parts, whereof three were to be given to firming the decision of Hall, V. C.), that, under the the children of his late aunt A. equally among them, circumstances, the executors had exercised a reasonthe descendants (if any) of those who might have died able discretion, and were not liable. Ct. App., April being entitled to the benefit which their deceased pa 14, 1877. Marsden v. Kent, 37 L. T. Rep. (N. S.) 49. rent would have received had he or she been then Trust: trustee acquiring benefit as ostensible ovner alive, and the remaining nine parts were to be given in misuse of a fiduciary position: trustees' unjust claim the same manner to the children and descendants of not forfeited by lapse of time: salmon fishings.-Per the others of his aunts in the said will mentioned. And Lord Chancellor (Lord Cairns): Where trustees acshould there be no children or lawful descendants of quire a benefit as ostensible owners of trust property, any of his said aunts remaining at the time these be that benefit cannot be retained by them, but must be quests were to become payable, the portion or por
surrendered to those who are beneficially interested. tions of the said residuary estate thereby devised and
Per Lord O'Hagan : The law of Scotland, equally with destined for such of them should be placed in the the law of England, condemns the misuse of a fidugeneral residuary fund. The testator directed that | ciary position, and declares that any advantage wrongthe division of his residuary estate among his relatives fully gained by a trustee shall inure to the benefit of should not be made till two years after his wife's the cestui que trust. Per Lord O'Hagan: Where a death. And the testator directed funds to be set apart trust has been broken by the trustees for their own to provide for his wife's annuity of £700, payable une | benefit, and to the injury of the cestui que trust, no der their marriage settlement. The testator's aunts lapse of time can validate the transaction. Where left children, all of whom died long ago; many of such the trustees of land affecting actual ownership acquire children left desceudants. The widow died in 1872. from the Crown a right of salmon fishing in the adThe suit was instituted by a great grandson of one of jacent sea, the acquisition inures to the benefit of the the testator's aunts. Held, first, that the word “de cestui que trust. Aberdeen Town Council v. Aberdeen scendants” was the same in meaning as the word " is University, L. R., 2 App. Cas., H. L. (Sc.) 514. sue;" and that by the context “the descendants be Trust for accumulation: void accumulation : Thellusing entitled to the benefit which their deceased parent son act: intestacy.-A testator gave freehold and leasewould have taken," "descendants” and “parent”. hold estates to trustees upon trust for his wife for her were correlative terms, and the “ descendants" to life, or until her second marriage, and, in case she take were the grandchildren of testator's aunts, re should marry again, upon the trusts thereinafter menmoter descendants being excluded. Sibley v. Perry, 7 tioned, and after the death of his wife, in trust for M. Ves. 5:27, followed; Ross v. Ross, 20 Beav. 615, held absolutely. But in case his wife should marry again, not to apply. Secondly, that the testator's widow did the said bequest in her favor was to cease, and instead not take a life estate by implication in the residuary | thereof she was to receive £500 a year, and the residue estate; the mere fact that the heir or next of kiu are of the income was to be accumulated from such secsome or all of the persons who take after the death of ond marriage until the wife's death, and then to be the widow, is not sufficient to raise the implication. disposed of as in the said will directed. Testator died Thirdly, that the accumulation ceased at the period in 1852. His widow married again in 1855. The peprovided for by the Thellusson act, and that the in- | riod of twenty-one years from the testator's death come was payable to the real and personal representa prescribed by the Thellusson act expired 16th April, tives respectively of the testator from that period up 1873. Held, that there was no effectual disposition of to the death of the widow, as under an intestacy. | the surplus from 16th April, 1873, and that there was Fourthly, that the fund was divisible at the death of an intestacy; that the trusts for accumulation then the widow, and not two years from that event. ceased; that accumulations since accrued and the fuFifthly, that the person claiming under the intestacy ture income of the estate belonged, so far as the same took the void accumulations free from all costs of the were attributable to personal estate, in equal moieties suit, which were to come out of the general fund. to the Crown and testator's widow respectively, and Ch. Div., March 12, 1877. Ralph v. Carrick, 37 L. T. so far as attributable to real estate, to the Crown alone. Rep. (N. $.) 112.
(Talbot v. Jevers, L, R., 20 Eq. 255, followed.) Ch. Executor: willful default of: omission to convert: | Div., May 29, 1877. Weatherell v. Thornbush, 37 L. T. speculative securities.-The estate of a testator, whose | Rep. (N. S.) 182.