In Tynan v. Warren, 53 N. J. Eq. 313, 321, Vice Chancellor Green, speaking for the court, said: "I do not understand that mere delay in bringing a suit will deprive a party of his remedy, unless such neglect has so prejudiced the other party by loss of testimony or means of proof, or changed relations that it would be unjust to now permit him to exercise his right." It is certain that none of those conditions appear in the present case. A mere change of the curriculum was not of itself an unequivocal disavowal of the trust, or an assertion of adverse right or interest in the government, and we find nothing in the record tantamount to such disavowal and assertion until the Governor of the Territory and the Superintendent of Public Instruction refused the demand of the plaintiffs' attorney to either pay the $15,000 or reconvey the property. The grounds of their refusal we are not informed of, but it was a disavowal of the trust and a denial of the alternative obligation to pay the money. The right of election in the Territory then passed to the plaintiffs, appellants here, and the bringing of the action was a sufficient exercise of it.

It is finally contended that the appellant cannot maintain this action. The Supreme Court of the Territory sustained this contention, saying, however, that it based its "decision upon the consideration of the substantial rights involved." The right of the plaintiffs is derived from a deed executed July 25, 1903, by the American Board of Commissioners for Foreign Missions to the plaintiffs as "trustees." It recites that the grantor is desirous of contributing to the support and maintenance of the Board of Hawaiian Evangelical Association, an eleemosynary corporation organized and established "in the great work of propagating Protestant Christianity, and for that purpose the land and property particularly described and referred to was conveyed in trust in order to assist said intended beneficiary to effectually carry out its corporate powers and purposes in said Hawaiian Islands." The instrument revokes and annuls all powers of attorney and grants of authority theretofore given to any person or persons whomso

ever, and gives, grants, bargains and sells, conveys and confirms, unto F. J. Lowrey, Henry Waterhous and William O. Smith certain lands described in the schedule annexed to the instrument, together with "all other lands in the possession of or belonging to the said grantor or to which said grantor has right, title, interest, claim or demand whatsoever, at law or in equity, and whether held by it in fee simple, as lessee thereof, beneficiary therein, or otherwise, as fully and to all intent and purpose as though a particular description thereof was herein incorporated and included in said schedule to have and to hold the same "in trust, nevertheless for the following uses and purposes, that is to say: First. To hold, manage and control the same, and receive and take the rents, issues, profits, income and proceeds of sales and authorized mortgages thereof, and hold such increment and realizations under the same trusts as the above granted trust property, using and applying the same, however, in the manner hereinafter provided. . . Sixth. And, generally to do and perform every act and thing and exercise every power and authority whatsoever, not herein specifically denied or withheld from or herein directed to be otherwise done or exercised by said trustees, as fully and to every intent and purpose as though the said trustees were the absolute owners in fee in their own personal right of the property hereby conveyed. Seventh. Any and all moneys arising from or out of the property of the trust estate, whether by way of rents or other issues and income or from sales or mortgages thereof, shall be received and held by said trustees;" and, after the payment of taxes and other expenses, "and until otherwise directed," by the grantor, shall be delivered "to said beneficiary, from time to time, any balance or portion of the moneys, then remaining in their hands over and above what may, in their judgment, be required for the current expenses connected with the said trust, any inapplied balance to be placed on general deposit, or the sai. trustees may invest the same upon security as they may aprove."

Statement of the Case.

215 U. S.

And the grantor reserved "the full right and authority, at any time or times, to direct any change or alteration in the disposition of the income and proceeds of the trust estate," or to remove any trustee or fill any vacancy however occurring.

It will be observed, therefore, that the instrument was designed to convey every interest in property that the grantor had. Considering its language and careful provisions, its purposes and the control reserved to the grantor of the trust and the disposition of funds, it would be a narrow construction of it to hold that the interest of the grantor in the Lahainaluna school did not pass by it, whether such interest was a right to receive a conveyance of the school or of the $15,000 which was to be in lieu of such conveyance. In other words, to completely enforce the rights and interests of the mission in the school and devote it or the proceeds from it to the purposes of the trusts which were created.

The judgment is reversed and the cause is remanded with directions to enter judgment for appellants as prayed for.

MR. JUSTICE BREWER took no part in the decision.

UNITED STATES v. SHIPP.

INFORMATION IN CONTEMPT.

No. 4. Original [No. 5, original, of October Term, 1908]. Opinion delivered June 1, 1909.-Sentence pronounced November 15, 1909.1

ON June 1, 1909, after the opinion and judgment of the court (214 U. S. 403) were delivered, The Solicitor General moved in open court for sentence, and thereupon the defendants Shipp, Gibson, Williams, Nolan, Padgett and Mayes, moved for leave to present petition for rehearing and the court ordered that they be allowed thirty days to pres ut a

1 For a full report of the proceedings in this case see 214 U.S. 6.

215 U.S.

Judgment of the Court.

motion for leave to file a petition for rehearing and that they be remanded to custody to be released on their respective recognizances in $1,000 each to be taken by the District Judge of the United States for the Eastern District of Tennessee. On June 7, 1909, a certificate of the said judge that such recognizances had been taken was filed in this court. The motions for leave to file petitions for rehearing were received by the clerk of this court during vacation (June 1October 11, 1909). November 1, 1909. Leave to file petitions for rehearing denied and the above named six defendants ruled to appear for judgment on November 15, 1909.

On November 15, 1909, Mr. Solicitor General Bowers announced to the court that the said six defendants were present in court in response to the rule issued against them, and asked that sentence be pronounced.

These defendants were then called to the bar by the clerk.

The Chief Justice announced the judgment of the court as follows:

You, Joseph F. Shipp, Jeremiah Gibson, Luther Williams, Nick Nolan, Henry Padgett and William Mayes, are before this court on an attachment for contempt.

On return to a rule to show cause you have presented such evidence as you were advised and been fully heard orally and on printed briefs, and after thorough consideration you have been found guilty. You have also been permitted severally to present petitions for rehearing and move that leave be granted to file them, which after consideration have been denied.

The grounds upon which the conclusion was reached are set forth in the opinion filed herein on Monday, May 24, 1909, and need not be repeated, nor need we dwell upon the destructive consequences of permitting the transaction complained of to pass into a precedent for unpunished contempt.

It is considered by the court, and the judgment of the court is, that as punishment for the contempt you, Joseph F.

Shipp, Luther Williams and Nick Nolan, and each of you, be imprisoned for the period of ninety days, and that you, Jeremiah Gibson, Henry Padgett and William Mayes, and each of you, be imprisoned for the period of sixty days, in the jail of the District of Columbia. The marshal of this court is charged with the execution of this judgment.

November 17, 1909, the marshal filed a return that the judgment of the court had been executed according to the tenor thereof.

MACKENZIE v. MACKENZIE.

ERROR TO THE SUPREME COURT OF THE STATE OF ILLINOIS. No. 465. Motion to dismiss submitted October 11, 1909.-Decided October 18, 1909.

A writ of error to review the judgment of the highest court of a State dismissed for want of jurisdiction without opinion.

Writ of error to review 238 Illinois, 616, dismissed.

Mr. R. G. Dyrenforth for the plaintiff in error.

Mr. Harris F. Williams for the defendant in error.
Per Curiam. Dismissed for want of jurisdiction.

RAND, MCNALLY & CO. v. KENTUCKY.

ERROR TO THE COURT OF APPEALS OF THE STATE OF KENTUCKY. No. 136. Motion to dismiss or affirm submitted October 18, 1909.Decided November 1, 1909.

A judgment of the state court affirmed without opinion on authority of previous decisions.

32 Ky. Law Rep. 1168, affirmed.