his estate, or so much as they should deem

ST. LOUIS, NOVEMBER 20, 1891.

The decision of the New York Court of Appeals, against the validity of the Tilden will, is a remarkable instance of legal wrong. There can be no doubt about the intention of the testator and yet it is set aside on a seeming technicality, and that too by a divided Mr. Tilden was a lawyer court of six to five. of profound ability and long experience and in the preparation of his will he had the assistance of another first class member of the profession. Nevertheless, the will is found to be fatally defective. The will is a voluminous one, setting forth in distinct and explicit terms the desire to establish a free library; but unfortunately so much is left to the discretion of the executors in carrying out the project that the trust becomes void. In other words, the provisions for the fulfillment of the trust were such that the executors could never be compelled to take any action under the will if they should choose, for any reason, not to do so. The law, of course, requires that where a trust is created the means of enforcing it shall be clearly stipulated. It is not enough to say that a certain sum of money shall be devoted to a given object, and then leave power in the hands of the executors to take their own time and choose their own way of making the application.

The point in the Tilden will case, to state' it with legal accuracy was this: The testator by his will, gave the residue of his estate to his executors and trustees in trust, to obtain an act of incorporation of an institution to be known as the "Tilden Trust," "with capacity to establish and maintain a free library and reading room in the city of New York, and to promote such scientific and educational objects as my said executors and trustees may more particularly designate," and provided that in case such institution should be incorporated satisfactorily to them within the life of the survivor of two specified lives in being, the executors and trustees were authorized to organize the corporation, and convey or apply to its use the residue of VOL. 33-No. 21.

case said institution should not be so incorporated, or if for any reason the executors and trustees should deem it inexpedient so to convey or apply said fund, or any part thereof, then they were authorized to apply the same "to such charitable, educational and scientific purposes" as in their judgment will render the same "most widely and substantially beneficial to the interests of mankind." The trustees obtained the charter as thus required, and conveyed to it the residuary estate. was held, five of the judges of the court dissenting, that the trust was void for want of a certain designated beneficiary, for uncertainty and indefiniteness in the objects thereof, and for excess of discretion in the trustees.

It

It is a great pity, of course, that such a splendid intention must come to nothing by reason of a legal fault in the form of its expression. Where the design is so plain the disappointment is worse than it would be if some question existed in that respect. The law recognizes the right of a man to thus dispose of his estate, but it exacts obedience to certain rules and doctrines on his part in the interest of general justice and propriety. If a man prefers to thwart the expectations of his relatives by bequeathing his money to charity there is a way for him to do so; but he must observe all the formalities or his right will be forfeited and his will annulled. His wealth is his own to do with it as he pleases in one sense, but in another sense he is only a custodian who is subject to well defined restraints and responsibilities. The law is his master even in the matter of giving away his money and quickly turns his plans to mockery when they conflict with its precepts. His privileges as a testator are not absolute, but conditional and dependent; and an error of the slightest sort, as in this case, is enough to upset his calculations and intentions.

of chancery, moneys amounting to $4,000 having been deposited by F G, in trust, with JE, JE afterward, on July 3, 1877, delivered to F G a writing, signed by him, as follows: "I hereby certify that I hold in trust for F G the sum of $4,000, for which I agree to pay interest at five per cent. per annum, and I promise to refund to her the said $4,000 on demand." More than six years after the date of this instrument, and shortly after the death of J E, F G made a demand for the $4,000, with interest, upon the administratrix of J E, and then filed her bill to enforce payment thereof. It was held (1) that although recovery of the $4,000 might be had at law, yet equity will also enforce payment of it, as the execution of a trust; (2) that because recovery may be had at law, and in an action at law therefor the statute of limitations may be interposed as a defense, the same statute may be interposed as a defense in a similar suit in equity; (3) that the certificate of JE is of a deposit in trust, and is not a promissory note; (4) that upon such a certificate, payable on demand, the cause of action crues when demand is actually made, and not at the date of the instrument, as in the case of a promissory note; (5) delay in demanding payment under such an instrument, during the life of the trustee, does not alone constitute laches fatal to a suit in equity. McGill, Ch., says:

ас

The third ground of demurrer was principally relied upon at the argument. It was insisted for the demurrants that the declaration or certificate by Mr. Erwin must be treated as, in effect, a mere promissory note, payable on demand, which might have been sued upon at law; that in a suit at law the statute of limitations might have been interposed as a bar to recovery, because it is settled in this State and elsewhere that a note payable on demand may be sued upon at its date without previous actual demand, and hence the right of action accrued at the date of the certificate, (Larason v. Lambert, 12 N. J. Law, 247), and that under such circumstances a court of equity will follow the law, apply the statute and refuse the decree asked for. If I assume the status of the declaration of trust to be as the demurrants insists, I must acquiesce in their conclusion. In the case of Kane v. Bloodgood, supra, Chancellor Kent said: "I cannot assent to the proposition that all cases of direct and express trust arising between trustee and cestui que trust are to be withdrawn from the operation of the statute of limitations notwithstanding a clear and certain remedy exists at law. The word 'trust' is often used in a very broad and comprehensive sense. Every deposit is a direct trust. Every person who receives money to be paid to another, or to be applied to a particular purpose, to which he does not apply it, is a trustee, and may be sued either at law for money had and received, or in equity, as a trustee for a breach of

trust." From the examination of a large number of decisions the chancellor deduces this rule: "That the trusts intended by the courts of equity not to be reached or affected by the statute of limitations are those technical and continuing trusts which are not at all cognizable at law, but fall within the proper, peculiar and exclusive jurisdiction of this court." This rule has been repeatedly adopted and approved in this State. Marsh's Ex'rs v. Oliver's Ex'rs, 14 N. J. Eq. 262; McClane v. Shepherd, 21 Id. 76; Partridge v. Wells, 30 Id. 176; affirmed on appeal, 31 Id. 362; Buckingham v. Ludlum, 37 Id. 145; Kirkpatrick v. McElroy, 41 Id. 539. In the case of Partridge v. Wells, Vice Chancellor Van Fleet, after stating the rule says: "The test then obviously prescribed by the rule is, had the suitor a remedy at law which he has lost? If the complainant in this case had a complete remedy at loss law, which has been lost by of time, he is not entitled to the remedy he seeks here." Under the assumption that the certificate or declaration of trust is in effect a mere promissory note, payable, with interest, on demand, the case comes clearly within the test just quoted. But is this certificate or declaration to be regarded as virtually a promissory note? It is to be observed that by it Jacob Erwin declares that he holds $4,000 in trust, not that he owes that sum, and that he will refund it, not pay it. The language is evidently selected with care, to fully and consistently express a deposit in trust in contradistinction from a promised payment of a loan or indebtedness. The declarant does not owe; he holds in trust. Considered independently of the words "in trust," the word "hold" implies a defensive possession, entirely consistent with that of a trustee. The declarant is to pay interest while he thus holds, but he is not to pay the principal sum; that he is to refund. The word "pay," importing indebtedness, is applied only to the interest which springs from the use of the fund. When disposition of the fund itself is mentioned, the word "refund" is used in the sense of "restore." I fail to perceive how more apt words could be selected to express the idea of a pure deposit in trust; and besides it is a continuous trust, for it contemplates a holding which will justify payment for the use of the fund. The certificate then does not stand upon the footing of a promissory note, which treats of the payment of an indebtedness, but upon the footing of a deposit continuing trust until the cestui que trust shall, by her act in demanding payment, determine

the trust.

Considerable contrariety of opinion exists in the courts of the several States as to whether a certificate of deposit, payable on demand, can be sued upon before demand has actually been made. I think that the better opinion is that it cannot be sued upon before demand. I do not find any adjudication in this State upon this subject, and I regret that my time has not permitted me to exhaustively examine the decisions of our sister States as I could wish. That which I consider the better opinion prevails in New York (Payne v. Gardiner, 29 N. Y. 146; Pardee v. Fish, 60 Id. 265; Howell v. Adams, 68 Id. 314; Boughton v. Flint, 74 Id. 476; Munger v. Bank, 85 Id. 580; Smiley v. Fry, 100 Id. 262), and in Pennsylvania (Trickett Lim. § 224); Maryland (Savings Inst. v. Weedon, 18 Md. 320): Vermont (Bellows Falls Bank v. Rutland Co. Bank, 40 Vt. 377); Minnesota (Mitchell v. Easton, 37 Minn. 335), and perhaps other States. Most respectable authority however holds the other way. Curran v. Witter, 68 Wis. 16; Brummagim v. Tallant, 29 Cal. 503; Poorman v, Mills, 35 Id. 118; Tripp v. Curtenius, 36 Mich. 496; Kilgore v. Buckley, 14 Conn. 362. In recognizing the first

cited of these authorities as holding the better opinion, I agree with Chief Justice Bronson in his remark in Downes v. Bank, 6 Hill, 297, where he says: "I do not find that the point has ever been decided, but it may be that this is the first case where a man has sued his banker without first drawing on him for the money. We are reminded that where the prom. ise is to pay on demand, the bringing of the action is a sufficient request. If that were a new question, I think the courts should not again fall into the absurdity of admitting that there must be a demand, and still holding that a suit may be commenced without any prior request. They would either say that no demand was necessary, or else that it was a condition precedent to the right of action. It is an anomaly in the law that the breach of the defendant's contract should be made out by the very fact of suing him upon it. In all other cases there must be a breach before suit brought. The rule ought not to be extended to cases which do not fall precisely within it." By the allegations of the bill in this case it distinctly appears that the actual demand for the restoration of the $1,000 was first made within six years previous to the commencement of this suit. If the money had been sued for at law the suit would not have been barred by the statute of limitations; hence that statute will not be applied here. It is insisted for the demurrants, that if the complainant's recovery is not barred by the statute of limitations, this court will nevertheless deny her relief because of her unexplained laches in making demand and instituting her suit. I am not willing to adopt this course at this time. Here is an express continuing trust, presumably acquiesced in by both trustee and cestui que trust, until the trustee died. The trust was apparently intended to be of indefinite duration for the benefit of the cestui que trust. How can it be said that she was guilty of laches in not determining it? I do not think that the bill exhibited laches upon her. But upon this insistment the demurrer itself is defective, for it fails to point out that the bill is objected to for the reason that it shows the complainant to have been guilty of laches. Van Houten v. Van Winkle, 46 N. J. Eq. 380.

In

CONTRACT RESTRAINT OF TRADE. Mills v. Dunham, 64 L. T. Rep. (N. S.), 712, recently decided by the English Court of Appeal, by an argument made between the plaintiffs, who carried on the business of manufacturers of an antiseptic substance, and the defendant, it was agreed that the defendant should become the traveler and assistant of the plaintiffs at a salary, and that he should "call upon and solicit orders" for all articles and commodities in the way of the plaintiffs' business of antiseptic manufacturers; that one week's notice on either side should terminate the agreement, and that, in the event of such termination, the defendant should not for or on account of any employer, or on his own account, at any time, either by himself or in partnership with any other person or persons or firm, "call upon or directly or indirectly solicit orders from or in any way deal or transact business with" any person or

firm who during the continuance of the agreement should be customers of the plaintiffs, or any of their successors, or any of the successors in business of such customers. The agreement was terminated, and the defendant entered the employment of a rival firm of antiseptic manufacturers, and solicited and obtained orders from some of the plaintiffs' customers for the substance manufactured by his then employers. Upon a motion to restrain the defendant from committing any further breach of the agreement, held, (affirming the decision of Chitty, J.), that, according to the true construction of the agreement, its object was to prevent the defendant, after he had left the plaintiffs' employment, from transacting with any person who had been the plaintiffs' customers business of a similar kind to that carried on by the plaintiffs; that the agreement did not go beyond what was reasonable for the protection of the plaintiffs, and it was therefore valid and could be enforced by injunction. Lindley, L. J., says:

This is an appeal by the defendant from an order of Chitty, J., restraining him from dealing with customers of the plaintiffs in violation of an agreement entered into by him. The case turns upon the question whether that agreement has been correctly construed by the learned judge. If it has, the order appealed from is right; if not, then the order is wrong. The facts which it is necessary to bear in mind may be very shortly stated. Dunham, in 1887, entered into the employment of two persons, who were carrying on business in partnership under the style of "The Food Antiseptic Company." The business consisted in the manufacture of an antiseptic substance known as "Frigiline." What its nature is does not concern us. The agreement for service was determined by notice, and Dunham entered into the service of a rival firm, who sold an antiseptic substance which they called "Freezall." The contract between the plaintiffs and the defendant is not as clear as it might be. The defendant is engaged by the plaintiffs to act as their traveler and assistant at salary, with an allowance at a certain rate for traveling expenses in London, and at another rate in the country. This must mean that he is to travel for them in England and Wales; it cannot extend to China or Japan. The defendant then agrees (1) to become the traveler and assistant of the plaintiffs, at the above salary; and (2) to devote his whole time, his best energies and attention, to promote and further the business of the plaintiffs; (3) that it shall be, amongst other things, the duty of the defendant to travel the country and districts required by the plaintiffs, and to call upon and solicit orders for all articles and commodities in the way of the plaintiffs' trade or business of antiseptic manufacturers and to receive moneys for or on account of the plaintiffs, and to transmit by the first practicable post, or otherwise deliver, all orders and moneys so received to the plaintiffs. I apprehend that "country and districts required by the plaintiffs" is not to be read in such a sense that the plaintiffs could have required the defendant to go abroad. The defendant agrees (4)

to make a daily report of all calls made by or upon him. This must refer to calls made by or upon him in relation to the plaintiff's business. Then comes the fifth, which is the important clause, and provides that, after the determination of the agreement by notice, or by breach of the stipulations or otherwise, "the said J. V. Dunham shall not, for or on account of any employer, or on his own account, at any time, either by himself or in partnership with any other person or persons, or firm, call upon or directly or indirectly solicit orders from, or in any way deal or transact business with, any person or firm who during the continuance of this agreement shall be the customers of the said G. S. Mills and A. Mitchell, or any future successors of the Food Antiseptic Company, or any of the successors' in business of such customers." That clause is expressed in very wide terms. It is contended on one side that it means literally what it says, and according to that construction, it would preclude the defendant from having communication with any of the customers of the plaintiffs' firm on any business whatsoever; would forbid his calling on any of those customers to solicit orders for a watchmaker or an umbrella-maker. Mr. Levett says this is what the parties were driving at. The other side say that you must look to the other clauses of the deed to see what the parties were driving at, and that this clause must be limited to business similar to that carried on by the plaintiffs, and that to give it any wider operation, though not doing violence to the language of the clause, would be doing violence to the spirit of the agreement. Now, the first thing we have to do is to ascertain the real meaning of the parties by construing the agreement without any leaning either way. I think that Mr. Levett's contention that you are to treat a restraint of trade as prima facie bad, and throw upon the person supporting it the onus of showing that it is reasonable, is introducing a wholly unsound principle into the construction of documents. I do not think that James, V. C., in Leather Cloth Company v. Lorsont, 21 L. T. Rep. (N. S.) 662; L. R., 9 Eq. 353, meant to lay down any such rule. His lordship says: "All the cases, when they come to be examined, seem to establish this principle, that all restraints upon trade are bad as being in violation of public policy, unless they are natural, and not unreasonable for the protection of the parties in dealing legally with some subject-matter of contract." And on these expressions Mr. Levett relied. But his lordship went on to say: "Public policy requires that when a man has by skill or by any other means obtained something which he wants to sell, he should be at liberty to sell it in the most advantageous way in the market; and in order to enable him to sell it advantageously in the market it is necessary that he should be able to preclude himself from entering into competition with the purchaser. In such a case the same public policy that enables him to do that does not restrain him from aliena. ting that which he wants to alienate, and therefore enables him to enter into any stipulation, however restrictive it is, provided that restriction in the judgment of the court is not unreasonable, having regard to the subject-matter of the contract." Looking at the whole of the language, I do not understand his lordship as saying that you are to approach the contract with a leaning either way. You are to construe the contract, and then see whether it is legal. In my opinion the construction which Chitty, J., has put upon this contract is the true one. I cannot think that the parties intended such a wide restraint as has been contended for by Mr. Levett. The object of the plaintiffs was to prevent the defendant from being allowed

to do anything which would be detrimental to their business; I think that "transact business" ought to be construed as confined to business similar to that of the plaintiffs. If that view be correct, it does not appear to me that the agreement goes beyond what is reasonable for the protection of the plaintiffs, and that, considering its nature, it is according to the cases referred to in Davies v. Davies, 36 Ch. Div. 359, not made unreasonable by there being no limitation as to time or distance. It is therefore unnecessary to consider the question whether the covenant is severable.

Lopes, L. J., says:

I entirely agree, and will shortly state my reasons. The principle deducible from all the cases is, that the question to be determined is whether the restraint, having regard to all the circumstances of the case and the nature of the employment, is greater than is necessary for the protection of the person in whose favor it is imposed. Mr. Levett argues that in the present case the covenant in clause 5 is so wide that it will prevent Dunham from having any dealings at all with any persons who were customers of the plaintiffs during his employment; that Dunham could not buy beef or watches from any of those customers, and could not be employed by any of them about any business. The plaintiffs say that, on the true construction of the document, those wide terms ought to be confined to a business similar to that of the plaintiffs. An agreement of this kind must be construed like any other agreement; that is, you must without any bias on one side or the other extract the intention of the parties from their words. I agree that if clause 5 stood alone it would be difficult to escape from Mr. Levett's conclusion. But, in construing one clause of an agreement, the whole of the agreement must be looked to. Here I find, first, that the plaintiffs are described as manufacturers, trading under the style of "The Food Antiseptic Company:" next, that Dunham engages to do his utmost to promote and further "the said business" of the plaintiffs. Then by clause 3 his duty is defined as being to travel the country as required by the plaintiffs, and to call upon and solicit orders for all articles and commodities in the way of the plaintiffs' trade or business of antiseptic manufacturers. After looking at these provisions, I take up clause 5, which provides that after the determination of the agreement Dunham shall not,"for or on account of any employer, or on his own account, at any time, either by himself or in partnership with any other person or persons or firm, call upon, or directly or indirectly solicit orders from, or in any way del or transact business with, any person or firm who, during the continuance of this agreement, shall be customers" of the plaintiffs or their successors in business. Construing this by the light of what has gone before, I have come to the conclusion that what the parties had in view was not business of any kind, but business of the kind mentioned before. If so, the stipulation does not go beyond what is reasonable for the protection of the plaintiffs, and is, in my opinion, a legal stipulation. In coming to this conclusion, we have the satisfaction of knowing that we are doing substantial justice, for the defendant is acting for a firm who are in direct rivalry with the plaintiffs.

Kay, L. J., says:

I do not dissent from the conclusion of my learned brethren that the decision of Chitty, J., in this case ought to be affirmed. We do not at all doubt the law on the subject. It is shown by Mumford v. Gething, 7 C. B. (N. S.) 305, that stipulations of this kind are

looked upon as advantageous to the public if so restricted as not to go beyond what is needed for the protection of the employer. They ought not then to be construed with a bias as being prima facie illegal, but construed fairly. Still the difficulty I have felt has not been entirely removed as to what is the meaning of the words in clause 5, and whether Mr. Levett's construction of them is not the better one. The plaintiffs' business is not mentioned in detail; it is first alluded to in the description of the plaintiffs' and is next referred to as "the said business" of the plaintiffs. Then clause 5 contains no reference to "the said business," and no reference to the manufacture of antiseptic substances, and, as Mr. Levett forcibly observed, the phrase is changed, and an expression is used which does not merely denote that the defendant shall not compete with the plaintiffs' business, but the agreement is that he shall not in any way deal or transact business with any of the plaintiff's customers. Mr. Levett contends that the plaintiffs in fram. ing the agreement, were not satisfied with binding the defendant, not to apply to the customers on behalf of any competing business, but intended to preclude him from having any business relations with any of the customers. Looking at clause 5 alone, that is its plain meaning, for I cannot see any difference between "shall not in any way transact business," and "shall not transact any business whatever." It was suggested that the use of the word "customers" had an effect on the construction of "business," but I think the only effect of the word is to define the persons with whom business was not to be carried on. I agree that the whole of the document is to be looked to, but my doubt, has been whether there is in clause 5 such ambiguity as to let in the canon of construction which allows us to explain an expression by reference to other parts of the document. With much doubt I think there is. If there is any ambiguity in a stipula tion between employer and employed imposing a restriction on the latter, it ought to receive the narrower construction rather than the wider; the employer ought to have the benefit of the doubt. It would not be following out that principle correctly to give the stipulation a wide construction, so as to make it illegal, and thus set the employed free from all restraint. It is also a settled canon of construction that where a clause is ambiguous, a construction which will make it valid is to be preferred to one which will make it void. This is analogous to the rule laid down in Grey v. Pearson, 6 H. L. Cas. 61, referred to in Abbott v. Middleton, 7 Id. 86. For these reasons I am of opinion that the decision of Chitty, J., ought to be affirmed.

EXECUTION EXEMPTION-INSURANCE DERIVED FROM EXEMPT PROPERTY.-In Reynolds v. Haines, 49 N. W. Rep. 851, the Supreme Court of Iowa hold that under Code Iowa, § 3072, which exempts from sale on execution for debt the books and instruments of a practicing physician who is the head of a family, money arising on an insurance of the property against loss by fire is also exempt. Beck, C. J., says:

The purpose of the statute is to secure to the debtor who is the head of the family-a physician and surgeon in this case-the instruments, books, and other articles which enable him to practice his profession.

Its purpose is to secure the necesaries of life-food, raiment, and shelter-to families who are dependent upon heads thereof, by securing to them the instruments and means by the use of which they are enabled to support their families. The exemption is plainly for the benefit of familtes of debtors, for those having no family can claim no exemption. The statute must be liberally construed, to carry out its purpose and spirit. Bevan v. Hayden, 13 Iowa, 122; Davis V. Humphrey, 22 Iowa, 139; Kaiser v. Seaton, 62 Iowa, 463, 17 N. W. Rep. 664. The debtor in the case before us was authorized, under the statute, to hold the property in question exempt from debts, if it were used for the purpose of his profession. It is plain that the use for which the property was kept determined the question of its exemption. The books, instruments, etc., of the physician and surgeon may be kept subject to the authority to change them, by sale or otherwise, in order to procure those of better character or improved construction. It is plain that the physician may sell his books, and replace them by better ones. Such sale is a proper use of his books and instruments in his profession. Another proper use of his books and instruments is their preservation from injury and destruction. He may insure them, to protect himself and family from loss from fire. The fact that they were insured would not make them subject to his debts. If they are de. stroyed by fire, the indemnity secured by insurance stands in the place of the books. It is intended to preserve the physician's library by securing means for its restoration after it is lost by fire. Surely that indemnity which is the indebtedness of the insurance company, or the money paid by it, stands in the place of the library, and ought to be, as it is, exempt from execution. The money due on the policy stands in the place of the property destroyed, and this must be true whether the money takes the place of the property by contract, or is acquired in invitum by proceedings against the owner.

It is plain that a trespasser, by appropriating the property and converting it to his own use, cannot make it subject to the payment of the owner's debts by holding the value of the property the measure of the debtor's damages for the trespass, subject to garnishment by the creditors. If he could do this, it would be a covenient method to defeat the exemptions of the statute. As we before remarked, the object of the statute is to secure to the family the benefit of certain property. These benefits cannot be enjoyed unless the debtor have the unrestricted use and control of the property, free from liability for debts as long as it is owned and used by him. When it is used for other purposes than the support of the family, it becomes liable for debts. But the change of the property into money will not indicate an immediate abandonment of the claim of exemption to the money on the ground of a purpose to invest it in like or other exempt property. Until an opportunity exists to make such investment, which is not a change of articles of exempt property, the debtor ought not to be presumed to abandon his claim. The debtor, as we have seen, has the authority to change the articles of exempt property by sale and purchase, exchange, or otherwise. He cannot be presumed to have abandoned his right to this authority until he has nad an opportunity to exercise it. The creditor cannot complain of its exercise He is defeated of no right thereby. The property is held free of his debt, and he is not prejudiced by the change to the other like property.

These doctrines and conclusions find support in the following decisions of this court: Kaiser v. Seaton,