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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, A careful consideration of the question presented with respect to the publication of a printed likeness upon this appeal leads me to the conclusion that the of Mr. Corliss, expressed the opinion that “inde- judgment appealed from should be affirmed. pendently of the question of contract, I believe the Two questions were certified by the Appellate law to be that a private individual has a right to Division to this court, viz.: be protected in the representation of his portrait "1. Does the complaint state a cause of action in any form; that this is a property as well as a at law for damages against the defendants? and personal right, and that it belongs to the same class “ 2. Does the complaint state a cause of action in of rights which forbids the reproduction of a pri- equity against the defendants?” vate manuscript or painting, or the publication of As the latter was the only question presented and private letters, or of oral lectures delivered by a passed upon by the court below, this court is only teacher to his class, or the revelation of the con- concerned with its answer; which should be in the tents of a merchant's books by a clerk.” The case affirmative. itself is not in point in its facts; because the com- I further advise, upon the affirmance of the order, plainant was the widow of Mr. Corliss and thus it that the defendants have leave to answer the comcame within the limitations of Schuyler v. Curtis. plaint, upon payment of the costs heretofore in

The right to grant the injunction does not depend curred, and in this court. upon the existence of property, which one has in

O'BRIEN, CULLEN and WERNER. JJ., concur with some contractual form. It depends upon the exist

PARKER, Ch. J.; Bartlett and Haight, JJ., concur ence of property in any right which belongs to a

with GRAY, J. person. In Pollard v. Photograph Co. (40 Ch. Div.,

Judgment reversed, etc. 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

FIRST DEPARTMENT. and treated as a wrong, whether arising from a

(Decided in July, 1902.) 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. HUTCHINSON SOUTHGATE, Trustee,

etc., and & G., 25).” In Prince Albert V. Strange, Lord

SARAH E. SOUTHGATE, Appellants, v. THE CONTIChancellor Cottenham sustained the issuance of an NENTAL TRUST COMPANY OF THE CITY OF New injunction, upon the ground that the right of privacy

York et al., Respondents. had been invaded by the publication and sale of etchings, made by Prince Albert and Queen Victoria.

Present: Hons. EDWARD PATTERSON, J., presidUpon the original hearing Vice-Chancellor Knight-'ing; MORGAN J. O'BRIEN, GEORGE L. INGRAHAM, Bruce, in granting the injunction, observed that CHESTER B. MCLAUGHLIN and EDWARD W. “ upon the principle of protecting property, it is Hatch, JJ. that the common law, in cases not aided or preju

Appeal by plaintiffs from portions of a judgment diced by statute, shelters the privacy and seclusion of thoughts and sentiments committed to writing, and by certain defendants from the whole of said

entered on decision after a trial at Special Term; and desired by the author to remain not generally

judgment. The decision at Special Term is reknown."

ported in 36 Misc., at page 415. It would be, in my opinion, an extraordinary view which, while conceding the right of a person to

0. J. Wells, for plaintiffs-appellants; Franklin be protected against the unauthorized circulation of Bartlett, for defendants-appellants; Sherman Evarts, an unpublished lecture, letter, drawing, or other for respondent Harriet A. Whitmore; Percival S. ideal property, yet, would deny the same protection Menken, for respondent Henry Southgate, to a person whose portrait was unauthorizedly ob- trustee. tained, 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- ! mere) 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 O'BRIEN, INGRAHAM and HATCH, JJ., concur. have received what due them upon the contract by which the children of Alcander Hutchinson MCLAUGHLIN, J.- I concur in the opinion of Mr. assumed the indebtedness of their father to the firm Justice Patterson, except as to the rate of interest of Hutchinson & Co.

to which Harriet A. Hume (Whitmore) is entitled, The allowance of eight per cent. to Harriet A. and as to that I dissent. I think she is entitled to Hume (Whitmore) upon the legacies of $70 coo eight per cent., and that the learned justice at Special given to her, it seems to me is altogether iniproper. Term did not err in so holding. 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 Soutligate, 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 cqual 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 I preference to any division or distribution thereof the authority of what was held in the Matter of in my said will directed." Under this provision, Stanfield (135 N. Y., 292); Matter of Baker (57 after the payment of debts and expenses of adminApp. Div., 41), and in the latter of Slocum istration, the trustee was entitled to receive froin the (6o App. Div., 441). It scems to me, however,'executor $70.000 in order that the trusts might be to be clear that what was held in those cases does set up, and the executor was bound by the express not apply here, because there is nothing to indicate provisions of the will to pay over to the trustee the an intention on the part of the testator to do other first moneys that came into his hands, so that the wise than have the trust for the benefit of Harriet intent of the testator in this respect might be carried A. Hume (Whitmore) constituted out of his general out. When the testator died, substantially his entire estate, after it should have been fully administered estate -- indeed, all of it that now remains, as well by his executors. There is nothing to indicate that as that theretofore paid to Harriet A. Hume or her he meant anything other than he said, viz., that the trustee was loaned to the firm of A. Hutchinson trust fund was to be created for the benefit of Har- & Co., of Paris, and under an agreement entered riet A. Hume (Whitmore) out of his general estate, into between the testator and the widow and chilbefore any distribution or division thereof was had, dren of Alcander this loan drew interest at the rate and the net income of the fund thus created was of eight per cent. per annum. More than enough to be paid over to her. The trust was to be con- of this loan has been paid to set up both trusts, stituted as an entirety. There is nothing in the will together with the interest thereon at the rate of to justify the assumption that because, after admin- eight per cent. to the time of payment. istration of the estate, it turned out that certain of It seems to me that a slight consideration of the the assets were earning interest at a certain rate, two codicils, when read in connection with the will, and that it is necessary to resort to those assets to clearly shows that the testator intended that Mrs. constitute the fund, therefore all that those assets Whitmore should, upon his death, enjoy the income earned by way of interest must go to the beneficiary derived from the two funds named, and that he did of the trust to be created. The gifts were not not intend that anyone but her should have the specific, and there is no right of selection given same. Otherwise, there is no meaning in the words either to the trustee or the beneficiary.

used by him directing the payment to the trustee, I am of the opinion that it appears from this will viz., “before and in preference to any division or that it was the intention of the testator that Harriet distribution.” She was to have her income irreA. Hume (Whitmore) should receive only net spective of any of the other provisions of his will. income to be derived from a fund to be invested by When he died the trust could not be set up because a trustee, which fund was to be constituted out of his estate, as already said, was then invested and the general estate of the testator after administra- drawing interest at the rate of eight per cent. per tion, and that this case is distinguishable from those' annum, and it could not be set up until the same,


to the extent of $70,000, had been paid, but the to be made. Until it is made, an equivalent in value moment that such sum had been realized from the of the property out of which the fund is to be investment, that moment the executor was obligated raised must be deemed to stand in place of the into pay the same to the trustee. Equity always treats vestment and whatever income arises from it meanthat to have been done which ought to have been while belongs to the legatee to whom it has been done. The loan should have been paid and the trusts expressly given.

If the estate is sufficient set up inmediately following the testator's death, for the liquidation of debts and other charges and and if it had been Mrs. Whitmore would have re- is so invested as to be productive of income from ceived whatever amount the fund earned, and the the death of the testator, a bequest of income to a fact that it was not done immediately following the legatee for life must be construed to invest him testator's death cannot be used to her prejudice. with a title to such income from the date of the She is entitled to receive whatever interest the fund testator's demise, unless there is some provision in earned intermediate the death of the testator and the will from which a contrary intent is to be payment by A. Hutchinson & Co. The money inferred." earned eight per cent., and, if effect be given to the The Matter of Slocum (60 App. Div., 438, affirmed testator's intent, it belongs to her.

as to this point 169 N. Y., 153) is also in point. The Matter of Stanfield (135 N. Y., 292) seems There, the property of the testator was invested, to me to be directly in point. There, the testator and at the time of his death was drawing seven directed his executors to invest $20,000 in bonds per cent. interest. By his will he directed that his and mortgage or government bonds and pay over property be converted into money, invested in bonds the income therefrom to his son for life, and at his and mortgages on improved farming lands, and death, the principal to another. It appeared that that one-third of the income derived therefrom be the corpus of the estate was so invested at the time paid to his son during his life and two-thirds of of the testator's death as to produce six per cent. such income be paid to his wife during her life. The interest. The investment directed to be made for court held that the life beneficiaries were entitled the son not having been made, proceedings were to all of the income accruing from the date of the taken by the son, in Surrogate's Court, to compel testator's death. Judge Hirschberg, delivering the the executor to pay to him the interest received on opinion, in which all of the other members of the the $20,000, and in affirming the order directing the court concurred, said: On the principle enunciated executor to pay a certain sum, the court said: in the Stanfield case, and supported by substantially “Where the income of an estate or of a designated every precedent and authority, the life tenants in portion is given to a legatee for life, we think it is this case should be held entitled to all the income clear that he becomes entitled to it whenever it accruing from the date of the testator's death. There accrues, and if the estate is productive of income is nothing in the will to indicate a contrary intent. from the death of the testator he can require the The direction to convert the estate into money, and executor to account to him for the income from to invest the money in the specified securities is that time. The rule that general legacies shall not not a controlling condition, where the income bebear interest until the expiration of one year from queathed is not, in terms. the income arising from the grant of letters testamentary, or of administra- the investments or the income accruing after the tion (Matter of McGowan, 124 N. Y., 526), has no investment.

The testator knew that his application in such a case. It is, by its terms, lim- estate was chiefly embarked in the grocery business, ited to general legacies payable out of the corpus where it was invested at interest constituting a debt of the decedent's estate. In the present case the or obligation of the firm, which was payable to him bequest is not a part of the principal of the estate, irrespective of profits, and which, until the converor of any property possessed by the testator in his sion and investment which he directed, with whatlifetime, but of that which is to arise or accrue after ever profits might accrue, would furnish adequate his death from a specified fund to be set apart for income for the support of his widow and his son's that purpose. It is the income which constitutes wife and family, and, consequently, in the general the respondeni's legacy. He is not seeking to charge provision which gave them for life the entire income the estate with interest upon his legacy, but is of the estate for support and maintenance, the simply endeavoring to secure the legacy itself, and income accruing before, as well as after, the conhis effort, therefore, involves no infringement of version and investment, must be considered to be the rule relating to the payment of interest upon included in the absence of any provision in the will general legacies. * The gift of the income from which a contrary intent can be inferred" (see, is independent of the gift of the principal and the also, cases cited in Judge Hirschberg's opinion, 60 right to the income does not depend upon the in-App. Div., on p. 444). This case is important, vestment, but was created and exists regardless of because on appeal to the Court of Appeals that court it. The direction to the executor, with respect to adopted, so far as the question of interest and the the investment of the fund, has reference to the time when it became payble is concerned, the opinadministration of the trust and cannot be available ion of the Appellate Division (see 169 N. Y., 159). to defeat the legatee's title to income accruing pre- Applying the principle laid down in these authoriviously to the time when the investment is required 'ties, if effect is to be given to the testator's intent,

* *

Her very

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. 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 But, after all, his lot is, by no means, an unhappy (eight per cent.) when the testator died until the one. Let us examine the condition of his critics, same had been paid.

the married men. The bachelor, it is conceded, has I think the judgment should be affirmed.

neither wood to split, house hunting and marketing

to do, babies to wash, nor lazy servant girls to look THE BACHELOR LAWYER IN A LARGE

aiter. He has no one to darn his stockings and sew

buttons on his shirts. He has no wife's poor relaCITY.

tions to support. He don't have to pay other peoThe average bachelor lawyer in a large city is ple’s bills. He is good-natured, because he has no truly an unhappy creature. He has no home, in the one to quarrel with. ordinary sense of the word, unless the society of a

Who lives in clover all his days? The bachelor. latch-key and the four walls of a cheerless room be Who is petted to death by the ladies who have marpresumed to represent it. Weak and bilious he riageable daughters, invited to tea and to evening arises in the morning, and with a heavy heart he parties and told to drop in when it is convenient? wends his way to the nearest restaurant and orders The bachelor. Who has flowers strewn on his grave his morning meal. His meals are set before him in by all the girls who couldn't entrap him? The restaurants oftentimes half cooked, and he thinks of bachelor. Who goes to bed early because time his mother, long since passed away, and the dainty hangs on his hands? The married man. Who meals prepared at her hands. Aiter supper he goes strewed the flowers on the married man's grave? to the theatre and returns about midnight to find His widow? Not a bit of it; she puts down the his lamp, with its cracked chimney, on the hall lowest one that a six weeks' grief has set up in her slab and the faniily gone to bed hours before his heart, and goes and gets married again, she does. arrival. On his return home at midnight the hall For my part, I prefer to cling to the latch-key and cat greets him kindly, and our hero sits down on mother. St. Paul says: “ He that marries does well, the lowest stair, pulls off his shoes and stockings but he that does not marry does better.” and critically examines their condition. Then up

Boys, I have here related the humorous side of stairs through the silent house, past the worn-out

a bachelor's life. I hope I have succeeded in amusclock on the landing, he finally reaches his room, ing you. The verdict I leave to the judgment of cold, musty and damp-smelling.

the kind and charitable reader. He saves himself from melancholy by critically

Joseph M. SULLIVAN. examining the photographs of his lady friends, Of the Suffolk (Mass.) Bar. 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 THE STUDY OF MARITIME LAW. piece of rolled-up newspaper, he lapses into a profound reverie. His eyes open wide with amazement

Should the professor at law schools, who teaches at the size of his laundry bill, and he vows that shipping and admiralty, have the experience of a henceforth he will cut off the laundry and wear seaman? May education in seamanship be absopaper. The cold-hearted landlady only thinks of lutely necessary in solving some of the legal puzzles him on Saturday night. If he is suddenly taken which involve it? Two recent articles in the New ill, the mistress of the house, fearing the loss of her York Maritime Register, of July 16 and 23, 1902, room rent, hastily orders an ambulance, and he tend to show that it may not be enough for an atis carried off to the nearest hospital.

torney to refer to and rely upon a seaman's aid, From the day when Noah portioned off the green though however astutely and wisely. and smiling earth between his three sons people The rather comical history of the attacks on naval have looked upon old bachelors with no small court-martial sentences in civil courts (which reamount of contempt and with considerable animos- semble the endeavors of a landlubber to Voxhaul ity. Why should a man be blamed for what he a ship), suggests that the mingling of seafaring cannot avoid? People will say that a man becomes with legal knowledge might have made different an old bachelor from mere choice, and will point annals. From the re-enacting, by the first American the finger of scorn at many an unfortunate example congress in 1776, of the old Mutiny Acts of England, of their assertions. The whole female sex regard and until more than half the next century had the old bachelor as their mortal enemy. Your bold, passed, lawyers appear to have been wary of strong-minded women are never dangerous to an admirals' courts and to have regarded discretion old bachelor; they attempt to carry his heart by as the better part of valor in meddling with them. storm, which invariably calls forth a stubborn re- No record can be found of any assault on their sistance, and ends in their signal defeat. It is the 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 L. S., 197). 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, of defect in the court-martial sentence which lie legally imprisoned. The statutes require that a studied, than that a pay clerk in the navy was not labeas 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 filing 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 of naval courts-martial also. But Judge Advocate-General Swaim, Jeff. Chandler with it was rather to his seaman's experience that he Gen. Epps Hunton to help him. The two could attributed his success. As a seaman he knew of a think of no other plea for their client, a paymaster- certain custom on board ship, that, as a lawyer, he general in the navy, than that he was not subject knew did magically disentangle the snarl of that to court-martial for the manner in which he per- theretofore interpreted statute. Had he been either formed his official duties. The Supreme Court seaman or lawyer alone he could not have brought assured them that he was (Smith v. Whitney, 116 together a nautical fact and a statute which seemed U. S., 167). Discouraged at the stupidity of the to have nothing in common, in the non-intersecting Supreme Court, the lawyers now turned their atten- spheres of thought of either lawyer or tion to the Court of Claims; and in 1888 ex-Senator This is shown in an analysis of the case in the New Epps Hunton petitioned that court (for a captain York Maritime Register of July 16 and 23. 1902. dismissed on the charge of drunkenness and wrecking The case was prejudiced about as unfavorably as his ship) to deprive the secretary of the navy of possible. Not only an opinion of the attorneythe latter's right to order officers under him, to tell general (19 Op., 476), but a decision of the Supreme the secretary, when the statute empowered the sec- Court itself (158 V. S., 117) was adverse to his retary to decide whether to order five or thirten contention. Nor was there any visible overruling officers to constitute a court-martial, that the Court of the Supreme Court's decision. But the clue of of Claims would displace him thereafter in running the nautical fact opened out a nautical history of the navy. That court told Gen. Hunton that when which the opinion in 158 U. S., 117, had been utterly the law gives the secretary a discretion the Court barren. Fortunately a subsequent decision came to of Claims could not take it from him (Mullan v. seamen's rescue securing them just trials by holding U. S., 23 Ct. of Cl., 36). One of the famous Blair that a statute must be judicially interpreted in the family next flew into the alluring spider web of a light of its history (169 U. S., 653). 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 C1., 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


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