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A careful consideration of the question presented upon this appeal leads me to the conclusion that the judgment appealed from should be affirmed. Two questions were certified by the Appellate Division to this court, viz.:

"I. Does the complaint state a cause of action at law for damages against the defendants? and "2. Does the complaint state a cause of action in equity against the defendants?"

As the latter was the only question presented and passed upon by the court below, this court is only concerned with its answer; which should be in the affirmative.

I further advise, upon the affirmance of the order, that the defendants have leave to answer the complaint, upon payment of the costs heretofore incurred, and in this court.

The right would be conceded, if she had sat for the various consequences entailed by defendants' her photograph; but if her face, or her portraiture, acts. The only complete relief is an injunction rehas a value, the value is hers exclusively; until straining their continuance. Whether, as incidental the use be granted away to the public. Any other to that equitable relief, she should be able to recover principle of decision, in my opinion, is as repugnant only nominal damages is not material, for the issuto equity as it is shocking to reason. Judge Colt, ance of the injunction does not, in such a case, deof the United States Court, in Corliss v. Walker pend upon the amount of the damages in dollars and (64 Fed. Rep., 280-5), a case involving the same question of an invasion of the right of privacy, with respect to the publication of a printed likeness of Mr. Corliss, expressed the opinion that "independently of the question of contract, I believe the law to be that a private individual has a right to be protected in the representation of his portrait in any form; that this is a property as well as a personal right, and that it belongs to the same class of rights which forbids the reproduction of a private manuscript or painting, or the publication of private letters, or of oral lectures delivered by a teacher to his class, or the revelation of the contents of a merchant's books by a clerk." The case itself is not in point in its facts; because the complainant was the widow of Mr. Corliss and thus it came within the limitations of Schuyler v. Curtis. The right to grant the injunction does not depend upon the existence of property, which one has in some contractual form. It depends upon the existence of property in any right which belongs to a person. In Pollard v. Photograph Co. (40 Ch. Div., 345) it was held that the right to grant an injunction against selling copies of plaintiff's photographs did not depend upon the existence of property and CREATION OF TRUST FUND BY WILL that "it is quite clear that independently of any RATE OF INTEREST ALLOWABLE. question as to the right at law, the Court of Chancery always had an original and independent NEW YORK SUPREME COURT, APPELLATE DIVISION, jurisdiction to prevent what that court considered and treated as a wrong, whether arising from a violation of an unquestionable right, or from breach of confidence or contract, as was pointed out by Lord Cottenham in Prince Albert v. Strange (1 MCN. & G., 25)." In Prince Albert v. Strange, Lord Chancellor Cottenham sustained the issuance of an injunction, upon the ground that the right of privacy had been invaded by the publication and sale of etchings, made by Prince Albert and Queen Victoria. Upon the original hearing Vice-Chancellor KnightBruce, in granting the injunction, observed that "upon the principle of protecting property, it is that the common law, in cases not aided or prejudiced by statute, shelters the privacy and seclusion of thoughts and sentiments committed to writing, and desired by the author to remain not generally known."

It would be, in my opinion, an extraordinary view

O'BRIEN, CULLEN and WERNER, JJ., concur with PARKER, Ch. J.; BARTLETT and HAIGHT, JJ., concur with GRAY, J.

Judgment reversed, etc.

FIRST DEPARTMENT.
(Decided in July, 1902.)

as

-

Trustee, etc.. and
HUTCHINSON SOUTHGATE,
SARAH E. SOUTHGATE, Appellants, v. THE CONTI-
NENTAL TRUST COMPANY OF THE CITY OF NEW
YORK et al., Respondents.

Present: Hons. EDWARD PATTERSON, J., presiding; MORGAN J. O'BRIEN, GEORGE L. INGRAHAM, CHESTER B. MCLAUGHLIN and EDWARD W. HATCH, JJ.

Appeal by plaintiffs from portions of a judgment entered on decision after a trial at Special Term; and by certain defendants from the whole of said judgment. The decision at Special Term is re

ported in 36 Misc., at page 415.

O. J. Wells, for plaintiffs-appellants; Franklin Bartlett, for defendants-appellants; Sherman Evarts, for respondent Harriet A. Whitmore; Percival S. Menken, for respondent Henry Southgate, trustee.

as

which, while conceding the right of a person to be protected against the unauthorized circulation of an unpublished lecture, letter, drawing, or other ideal property, yet, would deny the same protection to a person whose portrait was unauthorizedly obtained, and made use of for commercial purposes. PATTERSON, J.-I concur in the views expressed The injury to the plaintiff is irreparable, because by the learned judge at Special Term upon all the she cannot be wholly compensated in damages for questions involved in this case, with the single

exception of that relating to the amount of interest upon which the respondent Hariet A. Hume (Whitto which the defendant Harriet A. Hume (Whit- more) relies. I think that the judgment of the more) was adjudged to be entitled. I think the two | Special Term in this respect was erroneous, and that legacies to Harriet A. Hume (Whitmore) were it should be modified by allowing to the respondent cumulative, and that the specific legacy of $50,000 Harriet A. Hume (Whitmore) interest only at such did not supersede and cancel or displace that of rate as might be reasonably earned thereon — which $20,000 previously made by the testator to her. I according to the evidence, is four per cent.,' and that am also of the opinion that the learned judge at the provisions of the judgment relating to the interSpecial Term properly disposed of the question con- est to be paid by the Continental Trust Company cerning the rights of the children of Alcander | to Harriet A. Hume (Whitmore) should be modiHutchinson and their exclusion from any share of fied to correspond with the views expressed herein. the estate until Henry Southgate, as trustee for As so modified, the judgment should be affirmed, Harriet A. Hume (Whitmore), and Hutchinson without costs. Southgate, as trustee for Sarah E. Southgate, shall have received what is due them upon the contract by which the children of Alcander Hutchinson' assumed the indebtedness of their father to the firm Justice Patterson, except as to the rate of interest of Hutchinson & Co.

O'BRIEN, INGRAHAM and HATCH, JJ., concur.

MCLAUGHLIN, J.-I concur in the opinion of Mr.

to which Harriet A. Hume (Whitmore) is entitled, and as to that I dissent. I think she is entitled to eight per cent., and that the learned justice at Special Term did not err in so holding.

The allowance of eight per cent. to Harriet A. Hume (Whitmore) upon the legacies of $70.000 given to her, it seems to me is altogether improper. That award proceeds upon the theory that, inasmuch By the codicils it will be observed that the $70,000 as the testator made these two legacies preferential, given to Henry Southgate, as trustee, "to invest they are entitled to draw interest at the rate of eight, and reinvest the same, collect the income therefrom, per cent.- because some of the testator's property, and pay the net annual income in equal quarterly out of which the fund is to be constituted, consisted payments" to Hariet A. Hume (Whitmore) was to of an indebtedness that was drawing by contract be paid out of the testator's estate "before and in eight per cent. interest. This claim is made under preference to any division or distribution thereof the authority of what was held in the Matter of Stanfield (135 N. Y., 292); Matter of Baker (57 App. Div., 44), and in the Matter of Slocum (60 App. Div., 441). It seems to me, however, to be clear that what was held in those cases does not apply here, because there is nothing to indicate an intention on the part of the testator to do other wise than have the trust for the benefit of Harriet A. Hume (Whitmore) constituted out of his general estate, after it should have been fully administered by his executors. There is nothing to indicate that he meant anything other than he said, viz., that the trust fund was to be created for the benefit of Harriet A. Hume (Whitmore) out of his general estate, before any distribution or division thereof was had, and the net income of the fund thus created was to be paid over to her. The trust was to be constituted as an entirety. There is nothing in the will to justify the assumption that because, after administration of the estate, it turned out that certain of the assets were earning interest at a certain rate, and that it is necessary to resort to those assets to constitute the fund. therefore all that those assets earned by way of interest must go to the beneficiary of the trust to be created. The gifts were not specific, and there is no right of selection given either to the trustee or the beneficiary.

I am of the opinion that it appears from this will that it was the intention of the testator that Harriet A. Hume (Whitmore) should receive only net income to be derived from a fund to be invested by a trustee, which fund was to be constituted out of the general estate of the testator after administration, and that this case is distinguishable from those

in my said will directed." Under this provision, after the payment of debts and expenses of administration, the trustee was entitled to receive from the executor $70,000 in order that the trusts might be set up, and the executor was bound by the express provisions of the will to pay over to the trustee the first moneys that came into his hands, so that the intent of the testator in this respect might be carried out. When the testator died, substantially his entire state-indeed, all of it that now remains, as well as that theretofore paid to Harriet A. Hume or her trustee- was loaned to the firm of A. Hutchinson & Co., of Paris, and under an agreement entered into between the testator and the widow and children of Alcander this loan drew interest at the rate of eight per cent. per annum. More than enough of this loan has been paid to set up both trusts, together with the interest thereon at the rate of eight per cent. to the time of payment.

It seems to me that a slight consideration of the two codicils, when read in connection with the will, clearly shows that the testator intended that Mrs. Whitmore should, upon his death, enjoy the income derived from the two funds named, and that he did not intend that anyone but her should have the same. Otherwise, there is no meaning in the words used by him directing the payment to the trustee, viz., "before and in preference to any division or distribution." She was to have her income irrespective of any of the other provisions of his will. When he died the trust could not be set up because his estate, as already said. was then invested and drawing interest at the rate of eight per cent. per annum, and it could not be set up until the same,

to the extent of $70,000, had been paid, but the moment that such sum had been realized from the investment, that moment the executor was obligated to pay the same to the trustee. Equity always treats that to have been done which ought to have been done. The loan should have been paid and the trusts set up immediately following the testator's death, and if it had been Mrs. Whitmore would have received whatever amount the fund earned, and the fact that it was not done immediately following the testator's death cannot be used to her prejudice. She is entitled to receive whatever interest the fund earned intermediate the death of the testator and payment by A. Hutchinson & Co. The money earned eight per cent., and, if effect be given to the testator's intent, it belongs to her.

The Matter of Stanfield (135 N. Y., 292) seems to me to be directly in point. There, the testator directed his executors to invest $20,000 in bonds and mortgage or government bonds and pay over the income therefrom to his son for life, and at his death, the principal to another. It appeared that the corpus of the estate was so invested at the time of the testator's death as to produce six per cent. interest. The investment directed to be made for the son not having been made, proceedings were taken by the son, in Surrogate's Court, to compel the executor to pay to him the interest received on the $20,000, and in affirming the order directing the executor to pay a certain sum, the court said: "Where the income of an estate or of a designated portion is given to a legatee for life, we think it is clear that he becomes entitled to it whenever it accrues, and if the estate is productive of income from the death of the testator he can require the executor to account to him for the income from that time. The rule that general legacies shall not bear interest until the expiration of one year from the grant of letters testamentary, or of administration (Matter of McGowan, 124 N. Y., 526), has no application in such a case. It is, by its terms, limited to general legacies payable out of the corpus of the decedent's estate. In the present case the bequest is not a part of the principal of the estate, or of any property possessed by the testator in his lifetime, but of that which is to arise or accrue after his death from a specified fund to be set apart for that purpose. It is the income which constitutes the respondent's legacy. He is not seeking to charge the estate with interest upon his legacy, but is simply endeavoring to secure the legacy itself, and his effort, therefore, involves no infringement of the rule relating to the payment of interest upon general legacies. The gift of the income is independent of the gift of the principal and the right to the income does not depend upon the investment, but was created and exists regardless of it. The direction to the executor, with respect to the investment of the fund, has reference to the administration of the trust and cannot be available to defeat the legatee's title to income accruing previously to the time when the investment is required

* * **

to be made. Until it is made, an equivalent in value of the property out of which the fund is to be raised must be deemed to stand in place of the investment and whatever income arises from it meanwhile belongs to the legatee to whom it has been expressly given. * * * If the estate is sufficient for the liquidation of debts and other charges and is so invested as to be productive of income from the death of the testator, a bequest of income to a legatee for life must be construed to invest him with a title to such income from the date of the testator's demise, unless there is some provision in the will from which a contrary intent is to be inferred."

The Matter of Slocum (60 App. Div., 438, affirmed as to this point 169 N. Y., 153) is also in point. There, the property of the testator was invested, and at the time of his death was drawing seven per cent. interest. By his will he directed that his property be converted into money, invested in bonds and mortgages on improved farming lands, and that one-third of the income derived therefrom be paid to his son during his life and two-thirds of such income be paid to his wife during her life. The court held that the life beneficiaries were entitled to all of the income accruing from the date of the testator's death. Judge Hirschberg, delivering the opinion, in which all of the other members of the court concurred, said: "On the principle enunciated in the Stanfield case, and supported by substantially every precedent and authority, the life tenants in this case should be held entitled to all the income accruing from the date of the testator's death. There is nothing in the will to indicate a contrary intent. The direction to convert the estate into money, and to invest the money in the specified securities is not a controlling condition, where the income bequeathed is not, in terms. the income arising from the investments or the income accruing after the investment. * The testator knew that his estate was chiefly embarked in the grocery business, where it was invested at interest constituting a debt or obligation of the firm, which was payable to him irrespective of profits, and which, until the conversion and investment which he directed, with whatever profits might accrue, would furnish adequate income for the support of his widow and his son's wife and family, and, consequently, in the general provision which gave them for life the entire income of the estate for support and maintenance, the income accruing before, as well as after, the conversion and investment, must be considered to be included in the absence of any provision in the will from which a contrary intent can be inferred" (see, also, cases cited in Judge Hirschberg's opinion, 60 App. Div., on p. 444). This case is important, because on appeal to the Court of Appeals that court adopted, so far as the question of interest and the time when it became payble is concerned, the opinion of the Appellate Division (see 169 N. Y., 159).

* *

Applying the principle laid down in these authorities, if effect is to be given to the testator's intent,

then it seems to me that the Special Term correctly soft-eyed, gentle woman who makes the bachelor's held that the trustee is entitled not only to receive days of single blessedness numbered. Her very interest upon the fund bequeathed to him in trust gentleness fetters your every hint, and before you from the date of the testator's death, but to receive are aware of it you are completely enslaved. interest at the rate at which the funds were invested (eight per cent.) when the testator died until the same had been paid.

I think the judgment should be affirmed.

THE BACHELOR LAWYER IN A LARGE CITY.

The average bachelor lawyer in a large city is truly an unhappy creature. He has no home, in the ordinary sense of the word, unless the society of a latch-key and the four walls of a cheerless room be presumed to represent it. Weak and bilious he arises in the morning, and with a heavy heart he wends his way to the nearest restaurant and orders his morning meal. His meals are set before him in restaurants oftentimes half cooked, and he thinks of his mother, long since passed away, and the dainty meals prepared at her hands. After supper he goes to the theatre and returns about midnight to find his lamp, with its cracked chimney, on the hall slab and the family gone to bed hours before his arrival. On his return home at midnight the hall cat greets him kindly, and our hero sits down on the lowest stair, pulls off his shoes and stockings and critically examines their condition. Then upstairs through the silent house, past the worn-out clock on the landing, he finally reaches his room, cold, musty and damp-smelling.

He saves himself from melancholy by critically examining the photographs of his lady friends, which have been dusted by the servant and placed on the mantelpiece. He looks at the bed, standing frigid in the corner, and, lighting his pipe with a piece of rolled-up newspaper, he lapses into a profound reverie. His eyes open wide with amazement at the size of his laundry bill, and he vows that henceforth he will cut off the laundry and wear paper. The cold-hearted landlady only thinks of him on Saturday night. If he is suddenly taken ill, the mistress of the house, fearing the loss of her room rent, hastily orders an ambulance, and he is carried off to the nearest hospital.

From the day when Noah portioned off the green and smiling earth between his three sons people have looked upon old bachelors with no small amount of contempt and with considerable animosity. Why should a man be blamed for what he cannot avoid? People will say that a man becomes an old bachelor from mere choice, and will point the finger of scorn at many an unfortunate example of their assertions. The whole female sex regard the old bachelor as their mortal enemy. Your bold, strong-minded women are never dangerous to an old bachelor; they attempt to carry his heart by storm, which unvariably calls forth a stubborn resistance, and ends in their signal defeat. It is the

But, after all, his lot is, by no means, an unhappy one. Let us examine the condition of his critics, the married men. The bachelor, it is conceded, has neither wood to split, house hunting and marketing to do, babies to wash, nor lazy servant girls to look after. He has no one to darn his stockings and sew buttons on his shirts. He has no wife's poor relations to support. He don't have to pay other people's bills. He is good-natured, because he has no one to quarrel with.

Who lives in clover all his days? The bachelor. Who is petted to death by the ladies who have marriageable daughters, invited to tea and to evening parties and told to drop in when it is convenient? The bachelor. Who has flowers strewn on his grave by all the girls who couldn't entrap him? The bachelor. Who goes to bed early because time The married man. Who hangs on his hands? strewed the flowers on the married man's grave? His widow? Not a bit of it; she puts down the lowest one that a six weeks' grief has set up in her heart, and goes and gets married again, she does. For my part, I prefer to cling to the latch-key and mother. St. Paul says: "He that marries does well, but he that does not marry does better."

Boys, I have here related the humorous side of a bachelor's life. I hope I have succeeded in amusing you. The verdict I leave to the judgment of

the kind and charitable reader.

JOSEPH M. SULLIVAN.

Of the Suffolk (Mass.) Bar.

THE STUDY OF MARITIME LAW.

Should the professor at law schools, who teaches shipping and admiralty, have the experience of a seaman? May education in seamanship be absolutely necessary in solving some of the legal puzzles which involve it? Two recent articles in the New York Maritime Register, of July 16 and 23, 1902, tend to show that it may not be enough for an attorney to refer to and rely upon a seaman's aid, though however astutely and wisely.

The rather comical history of the attacks on naval court-martial sentences in civil courts (which resemble the endeavors of a landlubber to Voxhaul a ship), suggests that the mingling of seafaring with legal knowledge might have made different annals. From the re-enacting, by the first American congress in 1776, of the old Mutiny Acts of England, and until more than half the next century had passed, lawyers appear to have been wary of admirals' courts and to have regarded discretion as the better part of valor in meddling with them. No record can be found of any assault on their unknown bulwarks until so late as 1857. In 1857

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a reckless attorney petitioned that a naval sentence Court to. hold that art. 43, sec. 1624, R. S., meant be declared void by the United States Supreme that a red-handed murderer must be chased by a Court on the ground that "attempting to desert" sheriff with formal charges and specifications made (of which his client, Seaman Dynes, was convicted) out, ready to "furnish him " therewith on the instant was not comprised within the accusation of "de- of his arrest, on the penalty of all trial and convicsertion," of which he was charged. The profound tion of that murderer being prohibited. The court care given by the Supreme Court to seamen's in- did not agree with them (Johnson v. Sayre, 158 terests was testified to in this case by the court's U. S., 117). In 1897 the chief justice of Boston's giving some twenty pages to show that in charging fashionable suburb of Brookline, argued a habeas Dynes with "Desertion,” i. e., Attempting to desert' corpus case in behalf of a Boston Navy Yard seaand being successful in the attempt," he was charged man. The hearing was in September, 1897, and on with "Attempting to Desert" and could thus be the mysteries of the naval "articles; " and the result convicted thereof (Dynes v. Hoover, 20 How., 65- was an inability of the court to make up its mind 84). In the next case, in 1879, Hon. Geo. S. Bout- until December 31, 1897, when it decided that the well, cabinet officer and chief impeacher of Presi- seaman for whose imprisonment it had been redent Andrew Johnson, could see no other semblance sponsible from September until December, was of defect in the court-martial sentence which he legally imprisoned. The statutes require that a studied, than that a pay clerk in the navy was not habeas corpus writ shall be returned in three days in the navy and, therefore, not susceptible to trial and a hearing had in five, and that such case shall by court-martial. The Supreme Court told Mr. be "decided summarily." The failure of the judge Boutwell, with brevity, that he was (Ex parte Reed, to decide this case for three months was charged to 100 U. S., 13). Next the distinguished Jeremiah a less excusable incitement than intoxication proWilson, in 1885, had a fling at a naval court-martial duced by naval puzzles. The decision, however, and asked the Supreme Court to release, by habeas contains no trace of his three months' researches corpus, from imprisonment, a naval surgeon who (In re Crain, 84 Fed., 788). Perhaps the main diffiwas not in imprisonment. The Supreme Court told culty in this also was due to the bad sailing of the "Jerry" that they could not do it (Wales v. Whit- case and fouling of the gear under unnautical hands. ney, 114 U. S., 564). The next naval unfortunate In 1901 came the first victory for a hundred years. who appears in the court reports, evidently argued It was won by an attorney who had been a graduto himself, that a lawyer who could fasten a court- ate of the United States Naval Academy and a martial sentence on an "accused," could unfasten commissioned officer of the navy. He had been a such; and so employed the successful prosecutor of Judge Advocate-General Swaim, Jeff. Chandler with Gen. Epps Hunton to help him. The two could think of no other plea for their client, a paymastergeneral in the navy, than that he was not subject to court-martial for the manner in which he performed his official duties. The Supreme Court assured them that he was (Smith v. Whitney, 116 U. S., 167). Discouraged at the stupidity of the Supreme Court, the lawyers now turned their attention to the Court of Claims; and in 1888 ex-Senator Epps Hunton petitioned that court (for a captain dismissed on the charge of drunkenness and wrecking his ship) to deprive the secretary of the navy of the latter's right to order officers under him, to tell the secretary, when the statute empowered the secretary to decide whether to order five or thirten officers to constitute a court-martial, that the Court of Claims would displace him thereafter in running the navy. That court told Gen. Hunton that when the law gives the secretary a discretion the Court of Claims could not take it from him (Mullan v. U. S., 23 Ct. of Cl., 36). One of the famous Blair family next flew into the alluring spider web of a naval court-martial, coming forward in 1889 with "In construing any act of legislatures, regard is a request of the Court of Claims to set aside a to be had not only to all parts of any former act sentence as being "uncertain," because the fine of the same law-making power, of which the act imposed by the sentence had only the mathematical in question is an amendment; but also to the history certainty of an easy calculation. The request was of the law as previously existing." A further denied (Williams v. U. S., 24 Ct. of Cl., 311). In dubious suggestion of the court in 158 U. S.. 118, 1893 two Norfolk attorneys asked the Supreme that a seaman might, in effect. commit suicide by

judge-advocate of naval courts-martial also. But it was rather to his seaman's experience that he attributed his success. As a seaman he knew of a certain custom on board ship, that, as a lawyer, he knew did magically disentangle the snarl of that theretofore interpreted statute. Had he been either seaman or lawyer alone he could not have brought together a nautical fact and a statute which seemed to have nothing in common, in the non-intersecting spheres of thought of either lawyer or seaman. This is shown in an analysis of the case in the New York Maritime Register of July 16 and 23, 1902. The case was prejudiced about as unfavorably as possible. Not only an opinion of the attorneygeneral (19 Op., 476), but a decision of the Supreme Court itself (158 U. S., 117) was adverse to his contention. Nor was there any visible overruling of the Supreme Court's decision. But the clue of the nautical fact opened out a nautical history of which the opinion in 158 U. S., 117, had been utterly barren. Fortunately a subsequent decision came to seamen's rescue securing them just trials by holding that a statute must be judicially interpreted in the light of its history (169 U. S., 653).

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