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3 F.(20) 198 tories. Objections sustained in part, and in apparent on the face of the pleadings shall part overruled.

not be permitted to engross the time of the Blakeslee & Brown. of Los Angeles, Cal.. courts. The day is no longer here when the for plaintiff.

courtroom will furnish the arena for an exWilliam L. Connor. of Los Angeles, Cal.. hibition of purely strategic moves on the for defendants.

legal chessboard. When a case reaches the

stage for trial, the parties must be prepared JAMES, District Judge. This is a suit

to disclose the true state of the real issues, in equity in which infringement of letters

as to which there will be a conflict of evipatent No. 60,878 is claimed against the de

dence. The whole effort of the court, with fendants. Plaintiff alleged in the will of

the assistance of counsel and witnesses, must complaint that the patentees were Pardee,

be to ascertain the truth as to such issues Dewire, and Suporter, who were original

î alone. A position of counsel or a party, and joint inventors, and who thereafter as

who may know that he cannot dispute a fact signed their patent right to the plaintiff.

alleged, that he will require his opponent to The defendants answered; the answer in ef

take the time to establish before the court fect being a general denial of all of the al

such fact, is entitled to no sort of approval.

If such a practice is tolerated, in view of legations of the bill of complaint, except that it is particularly pleaded that, in view

the congested condition of the calendars of of the state of the prior art, patented and

the court, a necessary result will be that

references to masters must be more largely unpatented, there is no novelty in the invention described

resorted to, a practice not to be desired, and in plaintiff's patent. Defendants prepared a set of interrogatories

one which the Supreme Court Rules declare which they have propounded to the plaintiff,

should be the exception. The condition of and the plaintiff has objected to these in

the court's business in this district is now

sted such as makes this observation particularly terrogatories on the several grounds stated in written objections, which were filed and

pertinent, and it is especially applicable to

patent litigation, which, notwithstanding the afterwards presented in open court. There are constantly being presented, un

best efforts of counsel, is in the trial thereof der objections urged by opposite parties,

much protracted. questions as to the extent the plaintiff, on

[1] But there should be quite clear limits the one side, can go in eliciting facts by in

put to the scope of interrogatories which a terrogatories of his opponent. and vice ver- party may propound to his opponent, ad8a. It has been insisted, and by several of

mitting the allowance of the liberal rule the federal courts held, that under equity

stated. The interrogatories should not go to rule 58 a plaintiff can interrogate only as

the length of examination and cross-examto matters of fact within the knowledge of

ination on evidentiary matter, nor yet bethe defendant which will support the issue

come a mere curious excursion, to find tendered by the bill of complaint, and that

whether the party interrogated may possibly a defendant can interrogate only as to facts

know something which will aid a cause or material in support of his defense. It is

the defense to it. Interrogatories should be plainly to be observed that the rule does not

of such a character as that, by examining in terms or necessary effect so limit the par

the issues proposed or made up, it can be ties. It provides that plaintiff and defend- se

seen that the answers required will reasonant may file interrogatories "for the discov

ably state or illustrate a material fact. Inery by the opposite party • * * of facts

terrogatories requiring a plaintiff, for inand documents material to the support or

stance, to state whether he knows of any defense of the cause.” Careful considera- prior use antea

prior use antedating his patent, asked in tion was given to the language of this rule the hope that the defendant may discover and its practical meaning in Perkins Oil valuable defense matter, belong to this class, Well Cementing Co. v. Owen (D. C.) 293 F. and are improper. 759, and the conclusion was there reached

If a defendant in his answer to the bill of that a defendant might interrogate as to complaint presents general issues only, and the facts supporting the plaintiff's cause of then interrogates as to matters which do not action, and that the plaintiff could likewise appear to be necessarily connected with his inquire into the facts upon which the de- defense, he cannot complain if his interrogfense as made by the answer was founded. atories are disallowed; for the court will

This conclusion is one that answers the indulge in no assumption that there will be test that justice shall be attained as speedily other evidence not yet disclosed which will as possible, and that issues which are only show the pertinency of the desired answers. Where the state of the art is pleaded against rules which I have outlined, the plaintiff invention in the answer, it has been consid- should answer all of the interrogatories from ered proper for the defendant to declare and including No. 1 to and including No. seasonably before trial what examples of 24; also interrogatories 30, 32, 33, 46, 47, such art he will rely upon.

48, 49, 54, 58, 59, 60, 61, and 62. As to the [2,3] The assignment of a patent, alleged remaining interrogatories, the objections of in a complaint to have been made to a plain the plaintiff are sustained. tiff, does not authorize a defendant, under å mere denial of that assignment, to interrogate plaintiff as to whether at any other time he has made any other assignment. It is easy for the parties to present sufficient

UNITED STATES V. HINSON et ux. and clearly stated issues in their pleadings, (District Court, s. D. Florida. January 13, and, where this is not done, interrogatories

1925.) should be scrutinized, and narrowly limited to the things that the court is able to see

No. 2176. will constitute material matter.

Husband and wife Om 107-Coverture not Interrogatories calling for disclosure of ground for plea in abatement to criminal the date of conception of the patent idea, or prosecution. the date of its reduction to practice, may A plea of coverture does not state cause of

abatement of a prosecution against a wife for cause this special information of the ground

an offense against the United States charged work of a plaintiff's case to be exhibited to to have been committed jointly by husband a defendant before the defendant has indi- and wife. cated what his defense field of prior invention, use, or particular anticipatory devices Criminal prosecution by the United will be.

States against Joe Hinson and Luella Hin[4] Likewise as to plaintiff's interroga- son. On demurrer to plea in abatement. tories covering defense matter. It has been Demurrer sustained. stated at different arguments on objections

W. M. Gober, U. S. Atty., of Tampa, to interrogatories that answers made to such questions should be sealed and deposited

on Fla., and Maynard Ramsey, Asst. U. S. with the clerk until both parties have com- Atty., OT jacksonville, flan mitted themselves as to those facts; this ,

A. G. Hartridge and Richard Stillman, upon the theory that to do differently is to both of Jacksonville, Fla., for defendants. encourage the production of false evidence. The reason is a good one, if the court is CALL, District Judge. At common law bound to assume, or ought to assume, that it is probable that the plea of coverture a perjured case will be brought in when the would state a cause of abatement, on acopportunity is open. That assumption is count of the unity of husband and wife; not one that has judicial sanction. Such an the husband being the responsible party order was made by me in one case, and I am for joint crimes committed by husband and cited to Hillman Mfg. Co. v. Alvin C. Gar- wife. And this rule would prevail in states side et al. (no written opinion) as a case adopting the common law and having made where the practice was established. I find no change by statute. As I understand it, by examining the files in that suit that the there is no common law prevailing in the order for sealing the interrogatories was United States, and since the adoption of made on the written stipulation of counsel the Nineteenth Amendment to the Constituand not of the court's motion. Where that tion, it seems to me that the rule of comkind of an order is made, I think it should mon law has no application to crimes combe entered by consent.

mitted against the United States. Coming, now, to the interrogatories sub- The demurrer to the said plea will there mitted in this case, and applying the general fore be sustained.


a decree in the Supreme Court of the Dis

A decree in the Supreme Court of th
LARNER et al. *

trict of Columbia, construing a provision in (Court of Appeals of District of Columbia. the fourth paragraph of the will of Maria Submitted December 8, 1924. Decided F. McCalla, late of the District of ColumJanuary 5, 1925.)

bia, the will bearing date of September 1,

1905. This paragraph of the will gives the No. 4128.

residue of the estate to the appellee John B. 1. Wills

Larner108—Void where statutory requirements have not been complied with.

"in trust to sell and reduce my entire estate A will is void, where formalities of execu

to cash as soon after my decease as praction, prescribed by Code, 8 1626, have not been ticable without sacrifice and to divide the complied with.

same, together with the proceeds of sale of

the property in Savannah, Georgia, known 2 Wills 488—Construed according to terms,

as trust lot lettered 'A,' the title to which without aid from extrinsic evidence, unless terms are ambiguous.

is now held by the said John B. Larner, Will should be interpreted according to its

trustee, to be sold and the proceeds thereof terms, notwithstanding motives by which testa disposed of in accordance with such director was actuated, and extrinsic evidence is not tions as I might by my last will and testaadmissible, unless terms are ambiguous.

ment order or direct, after paying all ex3. Wills 489 (2). 514_Bequest held to as. penses incidental to the execution of this sociation popularly known by name given. trust, including compensation to the trustee

Bequest to "the Seventh Georgia Regiment as hereinafter provided, into five (5) equal of Savannah, Georgia," with "Savannah” delet- parts, and to pay: ed, held bequest to association popularly known "One-fifth (45) thereof unto the Union as the “Seventh Georgia Regiment of Georgia,” Society of Savannah, Georgia (an orphans' though it was not a Savannah institution, and even if extrinsic evidence showed that tes

? home); tatrix intended all bequests to go to Savannah “One-fifth (15) to the Georgia Infirmary institutions, since such extrinsic evidence, in (a hospital for negroes) of Savannah, Georview of unambiguous terms of will, could not be gia: considered.

"One-fifth (75) to the Savannah Hospi4. Wills 489(1)-Rule as to admissibility tal;

of extrinsic evidence in construction of wili “One-fifth (15) to the Savannah Guards, stated.

and Extrinsic' evidence is admissible, where “One-fifth (15) to the Seventh Georgia there are two persons or things that equally Regiment of (Savannah) Georgia. well answer name or description contained in M

"M. F. McC.

M C will, and where will contains actual misdescrip tion of object or subject, and real intent of tes. The word “Savannah," in the fifth item tator is made to appear from other provisions, of this paragraph, was canceled before the

will was executed, and the testatrix initialed

the deletion. Appeal from the Supreme Court of the On April 10, 1912, the testatrix executed District of Columbia.

a codicil, in which she ratified and confirmed Suit between the Association of Survivors

her will “in every particular after a careof the Seventh Georgia Regiment and John

ful reading and examination thereof." In er the last will and this codicil she stated that almost all her testament of Maria F. McCalla. deceased. estate came from her cousin, Julia E. Bain, and others. From the decree rendered. the and that there was an oral understanding former appeals. Reversed and remanded. between her and Mrs. Bain that testatrix with directions.

should dispose of what remained at her

death "in the manner that I have done by J. S. Barbour, of Washington, D. C., for my will of September 1st, 1905; and in makappellant.

ing the said disposition of my estate I have L. H. Boggs and Arthur Peter, both of

acted in strict accordance with the terms of Washington, D. C., and A. R. Lawton, Jr., the gift from my said cousin. to whom I of Savannah, Ga., for appellees.

gave my promise at the time of the execuBefore MARTIN, Chief Justice, ROBB, tion of her will.” Associate Justice, and HATFIELD, Judge The court below held that the words "Sevof the United States Court of Customs Ap- enth Georgia Regiment of Georgia" did not peals.

designate the appellant, but did designato *Motion to recall mandate and modify opinion denied June 1, 1925.

of will.

a Georgia corporation known as the First Mr. Larner had not been able to find the Volunteer Regiment of Georgia.

paper referred to, and a search in the ofOver the objection and exception of ap- fice of Mr. Cunningham, who had since depellant, the court admitted evidence to the ceased, failed to disclose a copy of the same. following effect:

. There was no evidence tending to show that Mrs. Bain, from whom testatrix derived Miss McCalla ever mentioned the First Volthis property, for many years resided in the unteer Regiment of Georgia, or that she District of Columbia. In her youth, how- even knew of its existence. ever, she may have lived in Georgia, where It is conceded that the Seventh Georgia the property was located. Mr. Larner, who Regiment was one of the most famous regirepresented Miss McCalla and drew her will, ments in the Confederate Army during the stated that both Mrs. Bain and Miss McCal- Civil War, it having taken part in every imla "had very strong ties in the South and portant engagement in which the Army of were constantly talking about their inter- Northern Virginia participated from first est and their feelings in that direction, Manassas to Appomatox. It lost over 500 though Miss McCalla was not born in the officers and men during this time, and in an South.” Mr. Larner settled Mrs. Bain's es- article appearing in the Atlanta Constitutate. She had made a will in favor of Miss tion on July 2, 1885, was described as "one McCalla, upon the distinct understanding of the most famous regiments in the Conthat Miss McCalla should give what was federate service, and has figured conspiculeft at her death "to certain interests in the ously in the literature of the war, especially South.” In the spring of 1905 Miss McCalla in the many stories that have been written and Mr. Larner were in Savannah, and Miss about the battle of Manassas.” On the anMcCalla executed a deed conveying her niversary of the first battle of Manassas, property to him in trust for disposition by July 21, 1885, the survivors of this regiment him as she should direct in her will. Mr. met at Atlanta, Ga., and formed a "permaCunningham, a Savannah lawyer, prepared nent association" of survivors. This assothe deed. Mr. Larner and Miss McCalla ciation has since continued and has held anconferred with him at his office "as to what nual reunions. The newspapers of Washinstitutions in Savannah should receive the ington, D. C., referred to these reunions as proceeds of this property, • * * and he of the “Seventh Georgia Regiment," or of named over a number of institutions in the "Survivors of the Seventh Georgia RegiSavannah that he thought would be proper ment.” The evidence leaves no room for for her to use in her will, and he told her doubt that this association, although comabout them and she approved them, and my posed merely of the survivors of the Seventb present recollection-I cannot be absolutely Georgia Regiment, was widely and popularcertain about it—but I think my recollection ly known as the “Seventh Georgia Regiwould be this: That Mr. Cunningham said ment," and that from the time of its organthat he would have to get the legal titles ization in 1885 no other association was or names of these various organizations, and known by that name. he would send them to us later. Now, my In the opinion filed in this case the learnrecollection is that he did send such a list, ed trial justice said: "Beyond the words and from that list I made up the names of of the will, not a single circumstance has these beneficiaries and put them in the will been proved to indicate that the Associayou will see by an examination of the will tion of Survivors of the Seventh Georgia there—I have them all one after the other, Regiment is named in the will.” The court and the last one is this Seventh Regiment of further said: "If it is a sound conclusion Georgia, of Savannah, Ga. It was evident- that the declarations of the testatrix are adly written in the first will—now my recollec- missible, then, considering the words of the tion is that, upon examining the paper more will, the codicil, her promise testified to by carefully that had been sent by Mr. Cun- Mr. Larner, and the other circumstances esningham, I noticed that the word 'Savannah'tablished by the evidence, it can be said bewas not in the corporate title of that organ- yond a reasonable doubt that she was speakization, and rather than to rewrite the whole ing of a Savannah institution, and, there bewill, I simply deleted the word 'Savannah,' ing but one institution in Savannah to which or had her draw her pen through it, and had the words of the will can apply, namely, her put her initials by the side of it, to in- the First Volunteer Regiment of Georgia, dicate that it was done wtih her knowledge it must be decided that that corporation is and consent."

the legatee named."

3 F.(20) 201 [1,2] The District Code (section 1626) to that intent would be for the court to requires all wills to be in writing, signed by make a new will. the testator or some person in his presence [4] While no rule of universal applicaby his express direction, and attested and tion has been formulated, the authorities subscribed in his presence by at least two leave no room for doubt that certain condicredible witnesses. This is a wise declara- tions must be present to warrant the intion of public policy. It recognizes the troduction of extrinsic evidence; and in all right of the owner of property to dispose of cases in which such evidence has been reit by will, and its undoubted purpose is to ceived it was utilized only for the purpose insure correctness and guard against mis- of interpreting something actually written in take and imposition. Unless the formalities the will and never to add provisions to the prescribed are complied with, the instrument will. For example, ambiguity may arise is void. Tucker and Others, Executors, v. when a will names a person as the object of Seaman's Aid Society and Others, 7 Metc. a gift, or a thing as the subject of it, and (48 Mass.) 188, 204. The instrument speaks there are two persons or things that equally when the voice of the testator is stilled by well answer such name or description. In death. A will conforming to the require- such a case, it is apparent that extrinsic eviments of the statute, therefore, should be dence is not only useful, but indispensable, interpreted according to its terms, and, un- to a proper interpretation of the will. less those terms are ambiguous, no specula- Where, also, a will contains an actual mistion based upon extrinsic evidence should be description of an object or subject, and from indulged. In the absence of fraud or un- other provisions of the will the real intent due influence, it will be assumed that the of the testator is made to appear, the indisposition actually made by the testator troduction of extrinsic evidence in such a represented his intentions. With the mo- case merely aids the court in harmonizing all tives underlying a particular bequest the the provisions of the will. See Weathercourt has nothing to do. Its function, and head's Lessee v. Baskerville et al., 11 How. sole function, is to give effect to the ex- (52 U. S.) 329, 13 L. Ed. 717; Patch v. pressed intent of the testator. Adams v. White, 117 U. S. 210, 6 S. Ct. 617, 710, 29 Cowen, 177 U. S. 471, 20 S. Ct. 668, 44 L. L. Ed. 860; Allen's Executors v. Allen, 18 Ed. 851; Young Women's Christian Home How. (59 U. S.), 385, 15 L. Ed. 396; Tuckv. French, 187 U. S. 401, 417, 23 S. Ct. 184, er and Others, Executors, v. Seaman's Aid 47 L Ed. 233.

Society and Others, 7 Metc. (48 Mass.) 188; [3] In our view, the bequest under con- Lomax v. Lomax, 218 Ill. 629, 75 N. E. 1076, sideration is free from ambiguity. While 6 L. R. A. (N. S.) 942; Fries v. Osborn, the four preceding items relate to Savannah 190 N. Y. 35, 39, 82 N. E. 716, 19 L. R. A. institutions, the fifth is not so limited. It (N. S.) 457. is plainly "to the Seventh Georgia Regiment The court below cites Kingman v. New of Georgia." There then was and still is Bedford Home for Aged, 237 Mass. 323, 129 such an association, widely and popularly N. E. 449, but we find nothing in that case known by that name. It must be assumed inconsistent with our conclusion here. The that the testatrix, in deleting the word “Sa- testator there, in 1859 and at the age of 14, vannah," intended to accomplish what she went from New Bedford, Mass., to St. Louis, in law did accomplish, the removal of one Mo., where he died in 1915, leaving a will limitation as to the habitat of this particu- executed in 1914, in which he placed certain lar beneficiary. It must also be assumed property in trust "for the use and benefit of that, had she intended to restrict this be- the New Bedford Home for Aged People, quest to a Savannah institution, she would or, if there be no such home, then to such have said so; that is, that she would not charities in the city of New Bedford as the have deleted from the bequest the only word . . . trustees . . may select." calculated to impose such a limitation. But Two corporations claimed the bequest. The that is not all. Almost seven years there- name of neither institution corresponded to after she executed a codicil, ratifying and that given in the will, and the court received confirming the provisions of her will "in extrinsic evidence. every particular after a careful reading and But the extrinsic evidence offered here, examination thereof." Reading the will as though received, would lead to the same con& whole, there is nothing to raise a doubt clusion. There is no evidence that the tesas to the intent of the testatrix, and to per- tatrix ever lived in Savannah, or that she mit the introduction of extrinsic evidence as ever mentioned the First Volunteer Regi

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