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 594 Perpetuities.

The Green Bag

Validity of Charitable Trust. U. S. A philanthropic citizen wishing to alleviate a state's financial burden deposited money in trust to be accumulated for the benefit of the state of Pennsylvania. The instrument pro vided that the trustee should invest the money and all its accumulations in the public stocks of the state whenever they could be purchased for a certain price, otherwise in government or other stocks, until the time should arrive when the fund so accumulated, together with any other sums which might be deposited with the trustee for like purpose should be equal to the debt at that time owed by the state, when it should be paid over to the treasurer of the state for the purpose of discharging its entire indebtedness, and for no other purpose whatsoever. The amount deposited was $2,000; the indebtedness of the state at that time was $40,000,000. In Russell v. Girard Trust Co., 171 Fed. Rep. 161, the United States Circuit Court held that as the state took no vested interest in the fund but was to receive the benefit of it only on a contingency which might never happen, or might happen at some indefinite time in the future, which might exceed the limitation of the rule against remoteness of accumula tions; the trust was void and the fund was recoverable by the personal representative of the settler upon his death. Procedure. See Appeals. Unfair Trade. Common Law Trademark Which Had Been Registered—Mark Not a Necessary Incident of Manufacture. U. S. The plaintiff, a nail manufacturer, had regis tered a trademark, also held valid at common law, consisting of a pattern of small checks stamped upon the head of horseshoe nails, and obtained a decree in the lower court enjoining defendant from using this trade mark. In Capewell Horse Nail Co. v. Mooney, decided at New York City August 20 (N. Y. Law Jour., Oct. 4, 1909), the United States Circuit Court of Appeals affirmed the judg

ment of Judge Ray, Judge Lacombe finding no error in his conclusions, and saying:— "The most we can say is that the proof leaves it doubtful whether or not the defend ant could economically and efficiently manu facture its nails without a gripping surface on its small roller which would impress perma nent marks on the front face of the nail head. "On this branch of the case defendant, who cannot reasonably dispute that his mark there placed is substantially like complainant's, has the burden of proof. But we concur with Judge Ray in the conclusions that, 'if it was necessary to have a gripping surface on the roller it was not necessary to use the only one of many which would produce (on the face of the nail head) the exact counterpart of com plainant's distinguishing mark, which had come to be known in the trade and among manufacturers and dealers in and users of horseshoe nails'; and that 'the production of this check mark on the defendant's nails is not a necessary incident of manufacture.'" Wills and Administration. Distribution per Capita and Per Stirpes—Legal Interpretation. N. Y. A testator, an eminent lawyer who knew the precise meaning of the terms he em ployed, bequeathed the residue of his estate one-third to the heirs of A, one-third to the heirs of B, and one-third to the heirs of C, "to be divided among them per capita as well as per stirpes, equally and in all respects, share and share alike." The Surrogate's Court of Nassau county, New York, in Matter of Curtis et al. (Aug. 1909, N. Y. Law Jour., Sept. 7, 1909), the Court said:— "The words 'per capita and not per stirpes' we may assume, were familiar to him, and if he intended what they mean, would he not have used them? The mere fact that he did not indicates that he had something else in mind when he used the words in question." He therefore intended only that the thirds should first be divided per stirpes and then per capita among the children of the legatees benefited by the distribution per stirpes."