I'EDERAL REPORTJCB,
vol. 88.
"
MORSS fl. DOJU:STIC8Jl:wING-MACHiNE
Co.
Uom-t.D. M'tU'Gclll'f"tt8. April 18, 1889.) CoNTEII1"1'-VIOL..l'l'ioN OF INJUNCTION.
Where defendant, in violating an; injunction, is not guilty of willful COD· .tempt. a nominal fine and costs .will be imposed.
In Equity.. Violation of injunction. Oharle8 F. Perhina" for petitioner. John Me and John Dane, Jr., .for defendant· . COLT, J. The real upon this motion is whether exhibit known as the "Domestic Dress Form" is not in suQs.tance the same as exhibit d!lfendant's.,Latest Style Form, which has been adjudged, upon motion fora preliminary injunction in this case, (37 Fed. Rep. 352,) to infringe the-second claim of the Hall patent. It to me that the exhibit D,omestic Dress Form comes clearly within the decisions of this court Ufford, 34 Fed .. Rep.,37, and in the present suit. I do not feel called upon to state again the grounds upoDwhich the conclusions of the lam satisfied,however,that the defendant has violated. the injunction order pf this court, issued in this case, and should therefore be adJuqged in contempt. 111- view, however, of the decjsion .of Judge BENEDICT, (Mor88 v. Manche8ter, 32 Fed. Rep. 282,) who apparently gives narrower construction to the Hall patent than tPis cpurt .is willing to accept, Ido not ,think the defendant guilty of wijlful contempt, and I shall therefore. only impose upon it a .nominal '1ine of $JO,. together with the costs upon this petition, to be paid within 10 days after the, entry of this order.
HARMON ", J:)
ee al.-f'. SlIIITHd ale
«(Ji'f'Cui{(Jourt,D. Minneaota.May9, 1889.) . , , . , A mere general direction in a will to pay debts is n6t a charge upon the real estate for that purpose, and furnishes no evidence of an intent to charge it. ON
L WILLS-CHAnGE I.
LAND' TO
PAyJ}1l:BTS.
SAME-POWER OF SALE-TERMINATION OF.
Testator gave and bequeathed all the residue of his estate to his executor and trustee, "with full power to sell and convey any or all of said estate, and convert the same into money," in trust for the use and benefit of H., who was made sole legatee. the proceeds to be paid over to her. Held, that the power of sale ceased on the death of H. A purchaser from the trustee is bound to ascertain whether the power of sale exists at the time of his purchase.
8. 4.
SAME-INVALID SALE-NOTICE TO PURCHASER.
INFA.Ncy-RATIFICATION OF INVALID SALE.
The act of the minor heirs of H. in receipting to the trustee for the proceeds derived from an exercise of the power of sale after the death of H. did not
.;:(; .lHARMON fl. SMITH.
483
constitute aratificatioD where they were not first fully. informed oj' the circumstances and of, ;that sale. but supposed their signatures were wanted. to enable hIm to get a final settlement, and be released ,from the management of the estate.' " . 6. Slinn-EsToPPEL BY ACTS OF GUARDIAN. . ' ' ' Whatever the father of the minor heirs, claiming to act as th.eir guardian, may have done in recognition of the trustee's P9wer after the of H., cannot estop them to assert the invalidity of the sale. " 6.
The doctrine of estoppel by conduct does not apply to infants, unless lIuch conduct was intentional and fraudulent. ,
BY CONDUCT.
In Equity. Bill to remove cloud on title. On May 16, 1863, George K. Swift, a citizen of the state of Ohio, made his last will and testament, as follows: ' "Know all men by these presents that I, George K. Swift, ofWarren, in the county of Trumbull and state of Ohio, in view of the uncertainty of our abiding time, do make this Diy last, will and testament: " Item 1. I direct that all my just debts and funeral charg«>s be paid· .. Item 2. I hereby request my executor hereinafter named to provide at his discretion suitable monuments for my dec«>asedparents and their deceased children, inclUding what he may deem proper for myself. " Item S. In remembrance of the kindness and attention of my sister J. Rebecca Harmon in time of sickness and trial, and knowing that my sister Maria P. Kirtland is amply provided with all the necpssaries of this life. I make the follOWing provision for the rest and residue of my estate : ' I gi ve and bequeath to my exeoutor and trustee hereinafter named all of my estate, both real and personal, with full power to sell and convey any or all of said estate, and convert the saD1e into rooney, to fulfill all contraats by me made, release mortgages, compromise and anjust claims that may be dtae to. me, at his discretion, make proper deeds of conveyance for land, and give I/ony acquittance .that may be necessary in the settlement of my pslate; said executor and trustee to have and to hold all of my estate, both real and personal, in trust for the use and benefit of my sister J. Rebecca Harmon, who I hereby make the sole legatee of my said executor of my estate. As soon as may be proper in the and trustee, I hereby direct him to pay over the avails of my estate, as it may come into his hands from time to time, or he may in final settlement convey to my said legatee all or any part of my real estate unsold, and a receipt from my said legatee for any balance after final settlement shall be a full and sufficient discharge to my said executor and trustee for the lIame. I do hereby constitute and appoint my uncle, Frederick Kinsman, my executor and trustee, to do and perform all as provided in this my last win and testament. .In witness whereof I have hereunto set my hand and seal this lotb day of May, A. D.1863. GEORGE 1\;. SWIFT. . [Seal.] "Signed, sealed, and publil;lhed in presence of us, James. Dana and Frederick Kinsman, Jr., who signed our names hereunto in presence of each other. "JAMES DANA.
"FB.EDERICK KINsMAN, JR.
[U. S. Rev. Stamp.]"
The testator died June 30,1865, and the will was admitted to probate by the proper court, and Frederick Kinsman, the executor and trustee therein named, duly qualified and accepted the trust. The testator owned real estate in St. Paul, MiDIl..; and prior to December 15, 1865, Kinsman having fully complied:with the laws of the state of Minneflota, (chapter 16,·Laws 1865 1) was authorized to execute the
484
FEDERAL ltEPOltTER,
vQl. 38.
will in Minnesota. On February 13, 1868, J. Rebecca Harmon, the sole legatee of Swift's estate, died intestate, leaving surviving her Julian Harmon, her husband, and three minor children,-Cornelia, born November 10, 1861j Julian D., born July 23, 1863; and Olive R., born Ma.rch 16, 1865. At the time of her death Kinsman had paid for the monuments, and had on hand a .large sum of money belonging to the Swift estate over and above debts. Ten years after the death of Mrs; Harmon, claiming authority under the Swift will, and without an order of court, he sold and conveyed on June 18, 1878, certain city lots in St. Ramsey county, Minn., including lot 24, block No.8, Nininger's addition, to the defendant Robert Smith, and executed the deed as executor and trustee of the estate of C. K. Swift. Smith sold to defendant Twohy, and the latter to defendant Dow. The defendant Armstrong is alleged to be infurested in the land with Smith. Kinsman died October 16, 1886, and the complainants bring this suit to set aside the deed from Kinsman to Smith, as a cloud upon their title; and those claiming under Smith are made parties defendants, and other relief is prayed. The land in controverllY is vacant and unoccupied. Frank Ford and John W. Pinch, for complainants. John D. O'Brien, Homirr a. Eller, and I. V. D. Heard, for defendants. NELSON, J., (after 8tating thefactB a8 above.) The. defendants claim that upon a proper construction of the will the power of sale was not limited to the life-time of Mrs. Harmon, but could be exercised by Kinsman at any time prior to a final d·istribution of the property to Mrs. Harmon during her Hfe, or afterwards to those succeeding to her rights. It is also claimed that the real estate as well as the personalty was charged .with the payment of debts, and when the lots were sold Smith was not bound to inquire. whether there were debts which justified a sale of real estate, or see to the disposition of the proceeds. It is also urged that the complainants, and each of them, a:re estopped from bringing this suit foi' the ·reason that the sale has been ratified by the acceptance of part of purchase money. The facts are silbstl:mtially undisputed, and the pas been elaborately and ably argued by counsel. ' . ' ,. . 1. The be u.pheldon the theory that the'debts were a charge upon the real estate. 'Ehe debts are not directed to he paid out of any particular fund. The personalty, as ,appears from the testimony, was ample to discharge all debts and pay for monuments, and it was so .. plied. The testator manifestly intended that the executor should pay -tbe debts from the personal estate, in the exercise of his duty, as law required. There was no trust created by the will, or expressed therein, by virtue of which· the executor and trustee could accomplish this obdect.. :A mere general direction to pay debts is not a charge upon the Janda tor ,tha;t 'purpose, and furnishes. no evidence of an intention '"t<il charge the real estatll. The latest authority found,(BallB v. Dampma:ni 16 Atl. 16; Md. Ct; App. Nov. 22, 1888, following White v. Kauffma1l-, 66 Md;.,92, 5 Atl..Rep. 865) so decides, and holds that such dec,;. ,}aration "simply provides what the Jaw has shall be done,
H,\RMON .fl. SMITH.
485
with or without such a clause in the will.» See Lwptan v. Luptan, 2 Johns. Oh. 614; Inre City oj RocheBter,1l0 N. Y. 159, 17 N. E. Rep. 740; Will. Eq. Jur. 488. 2. The only trust in the will is to sell and pay over the proceeds 'for the use and benefit of Mrs. Harmon, the sole legatee, and this is an ex" prpss trust, recognized by the law of Minnesota, Gen. St. Minn. § 11, p. 553, in force when the will became operative. After directing the payment of debts, and reyuesting his executor to provide suitable monuments, the testator "gives and bequeaths" all the residue of his real and personal estate to his executor and trustee, "with full power toseU and convey any or all of said estate, and convert the same into in trust for the use and benefit of his sister, Mrs. Harmon. who is made sole legatee, and directs him to pay over the avails to her. By these provisions it is clear that the testator intended that his whole real and personal estate should become united in one common fund for the sole purpose of distribution to the sole object of his bounty, Mrs. Harmon. The testator intended to and did exhaust the entire produce of the sale of his realty and personalty and give it to her. The whole property waS disposed ot by the will, and he died intestate as to no portion of his es. tate. There was a complete appropriation of his entire estate for the benefit of his sister, after the debts were paid and the monuments provided; and he gives a reason for it in his will. The testator created no other trust, and did look beyond his sister for an object of his bounty. It is true, he conferred upon his executor and trustee authority to fulfill his contracts, release mortgages, compromise and adjust claims that may be due, give deeds of conveyance for lands, and give any acquittances necessary in the settlement of his estate; but all these duties and powers not in the trust, to sell for the benefit of Mrs. Harmon, the ldw conferred upon Kinsman as executor, some of theln to be done by order of court, obtained upon application, and others out it. I concede that for purposes of the trust the real estate may be considered as personalty impressed by the doctrine of equitable conversion, but such conversion is admitted only for the accomplishment of equitable results. Kinsman only took the legal title subject to the trust, and on the death of Mrs. Harmon the estate, real and personal, vested in her representatives. The trust ceased to be active, and was then determined, and the estate belonged to the complainants; for the doctrine is well settled that the trustee only takes that quantity of est which the purposes of the trust require and the will permits, and its duration continues to that extent only. 4 Kent. Comm. 310, and note; 1 Perry, Trusts, § 312. The legal estate remained in the executor and trustee so long as the execution of the trust required it and no longer. Nicoll v. Walworth,4 Denio, 388; Young v. Bradley, 101 U. S. 787. The heirs of Swift would take under no circumstances, for the proceeds of the entire el:Jtate were disposed of by the will. No ulterior purpose for maintaining the trust is evinced, requiring that the intent, of the testator, to change the realty into personalty should be carried out. No sale was authorized except to convert the estate into money for the use and
486
FEDERAL REPORTER,
vol. 38.
benefit 'of Mrs. Harmon. Kinsman was not the trustee of the representatives of Mrs. Harmon and when he undertook to sell after her death the sale was utterly void. 3. It is claimed that the sale to Smith was ratified by the representatives of Mrs. Harmon, and that by their conduct they are estopped to assert any right to the land. The doctrine of estoppel by conduct does not apply to minors, unless such conduct was intentional and fraudulent. Bisp. Eq. §§282, 293; Big. Estop. (1st Ed.) 486. The acts of Kinsman in dealing with the property after the death of Mrs. Harmon, known to Mr. HarmoIll, the guardian, and the receipt of money derived from the sale by two of the heirs after they became of age, are relied upon, but they do not work an estoppel. Kinsman made the sale without informing the complainants except the father, Mr. Harmon, who refused to sign a deed as guardian or relinquish his curtesy. The paper purporting to be a release oflots in Ramsey county, Minn., signed by Harmon, guardian, and Cornelia and Olive Harmon, and the vouchers for money, are not sufficient evidence of the children's intention to ratify the sale. They at least must have been informed of every material fact, and been advised that the sale was void without confirmation by them, before a ratification can be established, if at all. Story, Ag. §§ 239, 243, and note; Kirr, Fraud· & M. 296;2 Pom. Eq. Jur. §§ 964, 965; Owings v. Hull, 9 Pet. 607-628. This was not done. Kinsman at no time informed the children of the sale, and it was only after his death they discovered it. He undertook to dispose of the property, claiming the right so to do as executor: and trustee under the will of Swift. When -the vouchers wefb signed by Cornelia and Olive he stated that he wished to get rid of the management of the Swift estate, and procured their signatures to enable a final settlement to be obtained, and nothing said about a desire to have the sale ratified. Smith knew that the sale was made by Kinsman, acting as executor and trustee, in the exercise of authority claimed under the will of Swift. It is so recited in the deed. He was put upon inquiry to ascertain whether the power existed to sell, and he must ascertain at his peril whether Kinsman had the estate which he professed to convey. 1 Perry, Trusts, § 226; 2 Perry, Trusts, § 814. Whatever Mr. Harmon may have done claiming to act as guardian, cannot bind the cbildren, and estop them from asserting a right to real estate illegally sold. The conveyance to Smith being void, the defendants Twohy and Dow, claiming title through him, have no standing in court, and the complainants are entitled to a decree, and it is so ordered.
HOFFMAN'll. MANUFACl'UnEBS' MUT. FIlm INS. CO.
487
HOFFMAN 11. MANUFACTURERS' Mm. FmE
INs. Co.
(Oircuit Oourt, D. Indiana. April 16, 1889.) 1RSURANC:m-CONDITIONS OF POLICY.
By the terms of a policy the insurer was not to be liable for a greater proportion of any loss on the property described in the policy than the sum insured therein should bear to the whole sum insured on such property. Held. that a statement occupying a space for the description of the property. in which different pieces of property were specified. and opposite each piece was placed a certain sum. did not amount to an agreement by the insured tbat he would maintain an insurance upon tbe property equllito the aggregate of such sums, so that the insurer could take such aggregate as the basia upon which to tll'ture its proportion of loss.
At Law. On demurrer to answer. This action counts upon a policy of insurance issued by the defendant to the plaintiff on a number of buildings and their contents, situated near Kellyville station in the state of Pennsylvania. 13y the terms of the policy the company agreed to indemnify Hoffman· to the amount of 82,500, and there is a provision that it shall not be liable for a greater proportion of any loss upon the property described in the policy than the sum iniured therein bears to the whole sum insured thereon. And it is also provided that the insurance may be terminated by either party upon notice, etc. Following the statement that the amount of the insurance is 82,500, and occupying the space for the description of the property, there appears the following printed form: SELLERS HOFFMAN.
On stone building marked" A" on plan, iRcluding stone addition and stone stairway house, · $10,000 On stone building marked "B" on plan. including stone stairway house. 5,000 On stone building occupied as picker-house and carding-room, 750 On stone building occupied as a machine-shop. 750 On stone and frame building occupied as a dye-house. 750 On stone. bUilding, including stack. occupied as a boiler and enginehouse. · 750 9n stone and frame building occupied as a packing and finishing house. · 750 On stone building occupied asa store-house and stable, 750 On machinery of every description. also shafting. pulleys. hangers, couplings, belting. piping. water-wheels, pumps. drums. gearing, tanks. hose, shuttles. heddles, reeds, bobbins, spools. press-boards, press-papers. tools, implements, appurtenances, furniture, fixtures. and machinery supplies. contained in bUilding marked "A" on plan. and in the stone addition and stone stairway house. - 89.000 On machinery· and other items as above described. contained in building marked"B" on plan. 15.000 On machinery and other items as above described, containell in bUilding occupied as a picker-house and carding-room, 2.000 Amouut carried forward - 875.500