7 Buch. Corbett Bros. Co. v. Reinhardt-Meding Co. similarity in the monograms, and some difficulty, perhaps, for the average person in deciding, without a rather careful inspection, which of the two monograms is on the label, but this is the result, I think, of the adoption by both parties of the small monogram of three letters, a form which either party was at liberty to adopt. It is a form of trade-mark which, I think, was necessarily liable to a certain degree of imitation in general effect, if the general form or idea of the monograms was adopted, and its protection as a trade-mark therefore must, in a case of this kind, to some extent, depend upon the liability of a purchaser to be deceived on close inspection. In reference to the use of the monogram, I conclude upon the whole evidence that a case of violating trade-marks or of unfair competition has not been made out. In reference to another part of the label, however, the complainant has, in my judgment, made out a case for relief. This relates to the use by the defendant on its labels of the same color numbers adopted by complainant to indicate the colors of the ribbons. These numbers are on the reverse side of the label, on which are also the numbers indicating the widths of the ribbon. The numbers designating the width are descriptive and are common. property in the trade, but each manufacturer has usually his own set or series of numbers to indicate the precise color of the ribThese numbers are arbitrarily selected by each manufacturer, and they usually adopt a series of successive numbers for the different shades of a color, e. g., in complainant's case, Nos. 1, 2 and 3, successive shades of white; 10 to 13, shades of pink; 15, &c., shades of blue; 45, &c., shades of indigo. bons. It appears by the evidence on both sides that in the manufacture and sale of ribbons, the continuance and reproduction of uniform shades is very important and is secured by the use of great skill and care. The standard of color for the ribbon (designated by the arbitrary number) is obtained by preserving a skein of the silk dyed to the color, which skein is carefully wrapped in paper, protected from the light, and is marked by the arbitrary number. The subsequent dyeings, when the same color is ordered or desired, are carefully compared in the skein with the standard color skein and by one or more experts in colors, and approved or redyed, as the, case may be. Many of the colors to Corbett Bros. Co. v. Reinhardt-Meding Co. 77 Eq. which these arbitrary numbers are fixed are standard colors, such as pinks, blues, greens, and so forth, and the successive numbers usually indicate different shades. These color numbers adopted by each manufacturer are made known to the retailers and jobbers by what are called color cards, giving samples of the different colors, with the color numbers on them. In ordering ribbons from the manufacturer, the color desired is usually, if not always, indicated on the order itself by the manufacturer's color number. These arbitrary color numbers adopted for this purpose and so used on the labels of each manufacturer put on the bolts of ribbons, are intended to indicate, and do indicate, I think, the origin of the goods sold and the manufacturer, and come strictly within the protection of trade-mark rights. Numbers arbitrarily selected when used for this purpose are valid trade-marks. American, &c., Leather Co. v. Anthony (R. I., 1886), 5 Atl. Rep. 626; Shaw Stocking Co. v. Mack (Judge Cox, 1883), 21 Blatchf. 1. In Ransome v. Graham, 51 L. J. Ch. (N. S.) 897, a series of combination of letters applied to indicate the origin of goods, was protected as a trade-mark, although they also indicated quality or patterns. In Humphreys Specific, &c., Co. v. Wenz, 14 Fed. Rep. 250 (Chief-Justice Nixon), a series of numbers used in connection with the name "Humphreys Specifics," each number designating a particular kind of medicine, was protected as a trade-mark. The use of such portion of a defendant's label or mark on its goods as is part of a complainant's trademark may be enjoined. Eureka Fire Hose Co. v. Eureka Rubber Manufacturing Co., 69 N. J. Eq. (3 Robb.) 159; affirmed on appeal, 71 Atl. Rep. 1134; 71 N. J. Eq. (1 Buch.) 300. The color numbers now used by complainant, as to which it applies for protection, were originally adopted by a partnership, Corbett, Reinhardt & Company, composed of the Corbett Brothers, Edgar M. and Robert S., Frank A. Reinhardt and one Horandt, and were arbitrarily selected, and for the purpose of having color numbers distinct from those of other manufacturers. On March 2d, 1907, Reinhardt, by bill of sale and for the sum of $40,000, conveyed to the two Corbett Brothers all his right, title and interest as partner or otherwise, in the goods and chattels, rights, effects and property of any kind belonging to the firm, 7 Buch. Corbett Bros. Co. v. Reinhardt-Meding Co. and on March 9th, 1907, the three remaining partners, by bill of sale, conveyed to the complainant company the partnership property, including, among other things, "all contracts, obligations and everything in any way pertaining to the business of the partnership." The transfers were effective to convey to the complainant the trade-marks of the partnership, and if the color numbers are part of the trade-marks, the use of them by defendant company is an infringement of complainant's property rights derived under the two bills of sale. The former partner Reinhardt, subsequent to these transfers, organized the defendant company and used in the business of the new company and for the same purpose, the color numbers originally adopted by the firm Corbett, Reinhardt & Company, so far as the defendant company took up the manufacture of ribbons of the same color, and the evidence shows that the adoption of the same series of color numbers was deliberate and intentional and made under the belief or claim that complainant had no right to the exclusive use of the color numbers to indicate its goods, and that the use of the color numbers did not constitute any tradeproperty right. mark or In my judgment, the color numbers being used to indicate the origin of the goods, are entitled to the protection of trade-marks, and I dispose of the case on this ground, without considering the further question as to whether the use of the color numbers, either alone or in connection with the monogram on the label, was not, under the evidence, unfair competition against which complainant is entitled to relief. I conclude that complainant is entitled to an injunction restraining the use of the series of color numbers adopted by complainant to mark the same or similar colors of ribbons manufactured by defendant. The colors indicating "white," Nos. 1, &c., are, however, not to be included, as it appears that many manufacturers use this same series. On settlement of decree application may be made to specify the color numbers as to which the injunction is to go. The complainant asks a decree for account, and application therefor may also be made at the settlement of the decree. EDWARD KAYHART, executor of Wilbur Kayhart, deceased, บ. ADELINE WHITEHEAD et al. [Decided May 7th, 1910.] 1. Where such is the intent of the will, the words "heirs" and "devisees" will be deemed to mean "legatees" when applied to gifts of personalty, and hence where gifts to certain persons were gifts of personalty or interests therein, but the gifts were given in terms "I give and devise," and the words "devise" and "devisees" were clearly used in the granting clauses of the will as intending to cover interests in personalty and the recipient of such interest, the recipients thereof will be deemed "devisees" within a provision of the will that, if any of the devisees should aid or attempt to prevent the proof of the will, all the expenses of probating it should be taken by the executor from the share of each one so attempting. 2. A provision in a will that if any of the devisees shall aid in an attempt, or attempt to. prevent the proof of the will, the expenses of probating it shall be taken from their shares thereunder, is valid. 3. Evidence held to show that certain beneficiaries aided the caveator in an attempt to prevent probate of a will so as to bring them within a provision therein that, if any of the devisees should aid in an attempt to prevent proof of the will, the expenses of probating it should be taken from their shares thereunder. 4. The filing by a beneficiary under a will of an appeal to the prerogative court from a decree of the orphans court, admitting the will to probate, was of itself an attempt to prevent the probate of the will, inasmuch as the jurisdiction of the prerogative court over the probate of wills is original, and upon filing of such appeal the question for decision is not the propriety of the decree below, but the right to the probate of the will; the question being triable de novo on the same evidence heard in the lower court or on additional evidence, and the effect of the appeal being to stay the probate so long as the appeal continues. 5. The orphans court may include counsel fees as part of the costs and expenses of the probate of a will which is contested. Heard on bill, answers, replication and proofs in open court. Mr. Charles A. Rathbun, for the complainant. Mr. Elmer King (Messrs. Vreeland, King, Wilson & Lindabury, solicitors), for the defendants. EMERY, V. C. The bill in this case is filed by an executor, who is also the residuary devisee and legatee, against four legatees, to recover or retain from their legacies the expenses of the probate of the testator's will. The amount paid was $4,648.32, and was paid by the executor out of the estate, under the order of the orphans court of Morris county, which admitted the will to probate in contested proceedings upon a caveat filed by George Decker, one of the four legatees, and after the dismissal for want of prosecution, of an appeal to the prerogative court from the decree admitting to probate, the appeal being filed by the defendant Mrs. Adeline Whitehead, a daughter of testator, and also a legatee. The right of the executor to recover is based on the provision in the will which follows the several devises and legacies: "Seventh. If any of my devisees shall file a caveat against this my Last Will and Testament, or in any other manner, aid, assist, or attempt to prevent the proof of my said will, then I do order that all the expenses of probating my said will be taken by my executor from the share of such one, or ones, as shall file such caveat, or attempt to prevent the proof of this my will." The word "children" was erased in the will as originally written and the word "devisees" interlined before execution. By his will, clause third, the testator "gave and devised" to his daughter, Adeline Whitehead, $2,000 absolutely, to be selected from his bonds and mortgages, and the further sum of $8,000 also to be selected from said bonds and mortgages, to be held in trust by his executor, to keep invested and pay her the interest during life, and at her death to be divided between her children. which survive her. She had two children living at testator's death, and still living, viz., Grace Conklin and Jennie Conklin, both of whom are defendants. To Grace Conklin, his granddaughter, testator also "gave and devised" a house and lot, if not sold by him, but the same was sold and the devise did not take effect. To George Decker, a grandson, and the remaining defendant, the testator "gave and devised" $100. |