Victoria which compelled a more rigid construction. In this case, a testator, after reciting that his son was now indebted to him in various sums of money in respect of advances and that he was desirous that his son should be released and that the securities should be given up, bequeathed to him all the aforesaid moneys and released him from all claims in respect of said moneys, "and all other moneys due from him." On these latter words the court of appeals, having regard to the before-mentioned statute, reversed the vice-chancellor and held that it would not be giving effect to testator's language if it were read as including only debts existing at the date of the will. In Douglas v. Douglas, Kay 409, Lord Hatherly, in another case under the same statute, said that a gift of all my stock would pass all stock to which the testator was entitled at his death, but that a gift of all my stock which I have purchased would be confined to stock actually purchased at the date of the will. The will there provided: "I hereby exonerate my sister from all claims in respect of money laid out by me in improvements of the estates in Scotland and which money has according to the laws of Scotland, been charged thereon;" and the decision was, that the exoneration only applied to moneys so charged at the date of the will and not to moneys afterward laid out and charged, and not even to moneys then laid out but afterwards charged. The statute under which this was decided (1 Vict. ch. 26 § 24) enacted that "every will shall be construed with reference to the real estate and personal estate comprised in it, to speak and take effect immediately before the death of the testator unless a contrary intention shall appear by the will." It has been regarded as imposing a more rigid rule of construction, in respect of personalty bequeathed, than had theretofore prevailed. In re Ord, 12 Ch. Div. 22; In re Portal, 27 Ch. Div. 600. It has not been copied into the legislation of this state; section 24 of the Wills act merely providing that real estate acquired by testator after the making of his will shall pass, &c., unless a contrary intention be manifest on its face. In view of the above authorities, it may not be altogether free from doubt whether had testatrix said in so many words that she released all debts that "are" owing to her by any relative, such release would have extended to debts incurred after the will was executed. But testatrix has made no bequest of debts. On the contrary, she has said that no debts were owing. How could she be regarded as intending to release or exonerate that whose existence she expressly denied? It cannot be argued that the words are not to be taken literally, for the reason that so taken they would not state the fact; for there is no allegation of any such debts. Taking the words as we find them, they do no more than state that which in the absence of proof to the contrary I must assume was true at the time she was penning her will, and untrue immediately before her death. Whom she meant by the term "relative" it is hard to say. Where a gift is made to "relations," courts, from the necessity of the case, give the word an artificial meaning in order to give it any effect at all. They confine it to relatives entitled under the statute of distributions and to persons who have married relatives so entitled. 2 Wms. Ex. *1003. Do the words themselves indicate (for there is no other indication) that when testatrix said on December 13th, 1906, "be it understood that no debts. are owing by any relative" what she meant was "I release all debts that may be owing to me at the time of my death by persons entitled under the statute of distributions and by those who have married such persons?" So to hold would indeed be carrying construction to a fantastic limit. The assumptions would be--first, that when she said no debts are owing she meant not then owing but owing when she died; second, that although she said no debts are owing, what she meant was, that if debts should be owing at her death she released them; third, that debts owing by relatives not entitled under the statute of distributions she did not release; or, if this be regarded as too strained, that she released every debtor who might establish relationship to the twentieth or thirtieth degree of consanguinity. I am unwilling to draw from language so simple and so intelligible a series of implications so purely conjectural. Looking at 7 Buch. N. Y. & N. J. Lubricant Co. v. Young. the whole clause, it would seem as if it might have occurred to testatrix at the time she was providing for a substituted executor that it might avoid trouble and inquiry on his part if she should let him know that, at that time, her relatives owed her nothing. NEW YORK AND NEW JERSEY LUBRICANT COMPANY V. O. W. YOUNG, a corporation, &c. [Decided August 8th, 1910.] 1. The adjective "nonfluid" and the noun "oil," when used in their proper sense, cannot be exclusively appropriated as a trade-mark since they are merely descriptive. 2. Any material misrepresentation in a label or trade-mark as to the person by whom the article is manufactured, as to the place where manufactured, or as to the material composing it, or any other material false representation, deprives a person of equitable relief when such trade-mark is infringed, although the act of the infringer was without justification, and although the false article was as good as the true one. 3. The general rule that one cannot invoke the aid of equity when his trade-mark is infringed, if such trade-mark is intended to defraud the public, is of universal application, and cannot be confined to particular classes of cases. 4. Where a party sold what was in fact a grease under the trade-mark of "nonfluid oil," it was a material misrepresentation to the public, such as would prevent equitable relief in case of an infringement of such trademark. 5. Regardless of whether certain advertisements were only occasionally put forth misrepresenting to the public that certain grease was "nonfluid oil," they were sufficient to show an intent to mislead the public by adopting such trade-mark. 6. Though in a suit for infringement of a trade-mark complainant was denied relief because its trade-mark was a fraud on the public, yet where respondent was guilty of a similar fraud costs were denied to it. 21 N. Y. & N. J. Lubricant Co. v. Young. 77 Eq. Mr. Edward M. Colie, for the complainant. Mr. Chandler W. Riker, for the defendant. STEVENS, V. C. This is a bill to enjoin the defendant corporation from selling or offering for sale, their lubricating compositions or greases under the name of "Nonfluid oil." The bill charges that immediately after its incorporation, in 1896, the complainant began the business of manufacturing and selling lubricants, and that for the purpose of identifying certain lubricating compositions, originated and manufactured by it from similar wares sold by others, on or about March 29th, 1900, it adopted and made use of, and since then has continued to make use of, a certain distinguishing mark or trade name, to wit, the words "Nonfluid oil," and that it has affixed the same as a label upon its boxes, packages and cans ever since the date named. The evidence sustains this allegation. The answer denies that the defendant has counterfeited, copied or colorably imitated any trade-mark or name of complainant, in violation of complainant's rights, or that in the manner of placing its name and the name of its goods upon its boxes, it has counterfeited, copied or imitated the manner of placing the name of the complainant upon complainant's goods or boxes. The evidence does not sustain this averment. In the case of some, at least, of defendant's cans and packages there is undoubtedly a design to imitate the make-up of complainant's cans and packages. The principle controversy, however, hinges upon the use by defendant of the words "Nonfluid oil." As to this, defendant says that the name was employed as a descriptive designation of the goods which it manufactured and sold; that the words composing it are words in general use in the English language, having a definite and well established meaning, and that as such they may be used by anyone who manufactures and sells goods of which the words are properly descriptive. This insistment would, no doubt, be sound if the lubricant that both parties make be, in fact, an oil. The undisputed evidence, however, shows that neither party manufactures an oil, properly so called. What they do 7 Buch. N. Y. & N. J. Lubricant Co. v. Young. put out is a grease. The two substances are so dissimilar that complainant founds his case upon the admitted difference. Were it not for the dissimilarity, it is conceded that complainant would have no exclusive right, for the reason that neither the descriptive adjective "nonfluid," nor the noun "oil," are capable of exclusive appropriation by any single manufacturer, if used in their proper sense. The complainant in his bill charges that the term "Nonfluid oil" is an arbitrary, fanciful and distinguishing name or trademark, applied by it to lubricating compositions for the first time. It does not tell us, however, wherein it is arbitrary or fanciful. It does not allege that its "lubricating compositions" are really greases and not oils, and that, as applied to these compositions, the name is arbitrary and fanciful and therefore capable of appropriation by the first user. In order to make out its case it had to show this by proof. Standing by themselves, the words do not appear to be either arbitrary or fanciful. They apply to a wellknown article of commerce, some of whose varieties are, at ordinary temperatures, solid. Nonfluid, as applied to them, is purely descriptive. On its appearing that complainant's lubricants were greases, defendant took the ground that the term in its application to such greases was a falsehood calculated to deceive the public, upon which complainant could base no right, even as against defendant, guilty of the same falsehood. This brings us to the point of the case. Can the complainant have an injunction to protect its use of a label that tells this untruth? The law has been settled by courts of the highest authority. In Worden v. California Fig Syrup Co., 187 U. S. 516, the supreme court of the United States, speaking by Mr. Justice Shiras, thus stated it: "When the owner of a trade-mark applies for an injunction to restrain the defendant from injuring his property by making false representations to the public, it is essential that the plaintiff should not in his trade-mark, or in his advertisements and business, be himself guilty of any false or misleading representation; that if the plaintiff makes any material false statement in connection with the property he seeks to protect, he loses his right to claim the assistance of a |