Statement by Mr. Justice Peckham: [31 Stat. at L. 1351, chap. 854). The devise

This is an appeal from a decree of the of the real estate is alleged to be void on court of appeals of the District of Colum- that ground, as is also the residuary bebia, affirming a decree of the supreme court quest to the cemetery company, while the of the District construing a will. 26 direction to erect a monument, as provided App. D. C. 209. The bill was filed by the in § 10 of the will, it is alleged, must fall executor of the will of Annie E. I. Andrews, with the destruction of the trust, as it is who was a resident of the District at the part of the general scheme of the will, and time of her death, and whose will was there is inseparable from the trust provisions. duly admitted to probate March 28, 1904. The executor submitted the questions to the The supreme court held that all disputed court and did not appeal from the original provisions of the will were valid, and en- decree nor from the decree of affirmance by tered a decree to that effect, which was af- the court of appeals, and he now asks that firmed by the court of appeals, on an ap- this court should make proper provision for peal taken by these appellants separately his protection and that of the estate, in from the other parties defendant, by leave regard to the costs involved by the contenof the supreme court of the District. All tion between the defendant and the appelnecessary persons were made party to the lants. suit. The deceased left an estate of about $10,000, of which $3,000 consisted of real Messrs. Noel W. Barksdale and Andrew estate in the city of Washington.

Wilson for appellants. The disputed portions of the will are Messrs. Hugh B. Rowland, Walter V. R. clauses 1, 10, and 12, and they are set forth Berry, Benjamin S. Minor, and Charles H. in the margin.

Stanley for appellee. J. Howard Iglehart, the executor, is the son of a deceased brother of the testatrix Mr. Justice Peckham, after making the (mentioned in the first clause of the will), foregoing statement, delivered the opinion and the two appellants are, respectively, of the court: her brother and sister.

The first inquiry is in regard to the law The executor, in his bill, alleged his readi- existing in the District of Columbia upon ness to distribute the estate as directed by the subject of trusts of this nature. There the will, but he said that some of the heirs are two sections of the Code of the Disat law disputed the validity of some of itstrict of Columbia ($8 669 and 1023 [31 Stat. provisions, and hence his appeal to the court at L. 1295 and 1351, chap. 854]) which are for a construction of those clauses.

involved in the question before us. Section The grounds of the dispute are stated to 669 (subchapter 6, relating to "Cemetery Asbe that the trusts created in the 1st and sociations," of chapter 18, relating to “Cor12th clauses of the will are void, as in vio- porations”) provides in substance that it lation of the statute of the District of Co- shall be lawful for cemetery associations inlumbia prohibiting perpetuities and re corporated under the laws of the District to straints upon alienation. D. C. Code, & 1023 take and hold any grant, etc., upon trust,

*First, I give, devise, and bequeath unto Tenth. It is my will, and I order and dithe Greenwood Cemetery Company, of rect, that $5,000 be raised out of my estate, Brooklyn, New York, as trustees, my real to be expended in erecting a suitable monuproperty, consisting of a house and lot, ment at the grave of my dearly beloved known and designated as house No. 88 M. husband, E. L. Andrews, in Greenwood Cemstreet, northwest, in the city of Washing- etery, Brooklyn, New York. ton, District of Columbia, to be held by Twelfth. It is my will, and I order and them in trust for and to the use of my direct, that all the rest and residue of my brother, J. H. Iglehart, and his wife, Jen- estate, real, personal, and mixed, wherenie Iglehart, of Baltimore, Maryland, during their life or the life of either of them; it may consist, shall be converted into cash,

soever it may be found, and of whatsoever provided, they shall keep the said property and said cash invested in United States in repair and pay the taxes thereon. At their death, or upon their failure to comply such securities shall be used by the said

securities, the interest and income from to repair and pay the taxes thereon, it is my Greenwood Cemetery Company, of Brookwill and desire that the said property shall lyn, New York, as trustees, in addition to be sold, and the proceeds of such sale shall be and together with the trust fund hereinbeinvested in United States securities, the in- fore mentioned in clause 1 of this my last terest or income from such said investment will, for the purposes and to the benefit of to be used by the Greenwood Cemetery Com- beautifying and keeping the aforesaid Anpany, aforesaid, as trustees, for the purpose drews cemetery-lot in perpetual good order of keeping the Andrews Cemetery lot in and condition. perpetual good order and condition.

to apply the income thereof under the direc- Assuming, however, that the section is tion of the association for the embellish- not affected by $ 1023,—it is then contended ment, preservation, renewal, or repair of any by the appellants that $ 669 does not apply cemetery lot or any tomb or monument or to this case, and that the trusts are not other structure thereon, according to the valid as a gift or devise to a charitable use terms of such grant, and the supreme court within the exception mentioned in § 1023. of the District is given the power and juris. It may be assumed for the purposes of this diction to compel the due performance of case that the gifts contained in the 1st and such trusts, or any of them, upon a bill filed 12th clauses of the will do not constitute a by the proprietor of any lot in such ceme- valid trust for a charitable use (Jones v. tery for that purpose. Section 1023 (sub- Habersham, 107 U. S. 174, 183, 27 L. ed. chapter 1 of chapter 24, relating to “Es-401, 405, 2 Sup. Ct. Rep. 336), and that tates”) provides that, except in the case of those clauses would be illegal if dependgifts or devises to charitable uses, every ent upon the exception mentioned in that juture estate, whether of freehold or lease- section. But the

But the earlier section is rehold, whether by way of remainder or with ferred to for the purpose of ascertaining out a precedent estate, and whether vested the policy of Congress within the District or contingent, shall be void in its creation, upon the general subject of trusts for the which suspends the absolute power of aliena- perpetual maintenance of cemetery lots, and tion of the property, so that there shall be no of monuments and other structures erected person or persons in being by whom an ab- thereon. solute fee in the same, in possession, can be That policy, as indicated in the section, conveyed, for a longer period than during permits in the District exactly what is prothe continuance of not more than one or vided for in this will,-namely, a trust to more lives in being and twenty-one years a cemetery (incorporated) association for thereafter. The provisions of the section the maintenance of a lot and a monument are (at the end of the subchapter) made in perpetual good order and condition. applicable to personal property generally, The law in New York in regard to Greenexcept where, from the nature of the prop- wood cemetery permits the same kind of a erty, they are inapplicable.

trust. Section 6 of chapter 156 of the Laws The appellants assert that § 669 is nulli- of New York for 1839, passed April 11, 1839. fied by $ 1023. They urge that the last sec- The law of the District of Columbia, where tion, being the last expression of the legis- the testatrix died and where the property lative will, and being inconsistent with $ was situated, and the law of the state of 669, the last section must prevail. This, New York, where the moneys are to be apalthough 669 makes special provision in plied by a corporation created by the laws regard to trusts of this nature and permits of that state, concur in permitting such their creation, yet, because the latter sec- trusts as are created in this will, and, untion does not in terms make exception of der those circumstances, such a trust will the trusts provided for in the earlier sec- be permitted by the courts of the District tion, these trusts, it is urged, are thereby to be carried out in the state of New York, prohibited.

although the testatrix was domiciled in the This is not a case for the application of District at the time of her death, and the that doctrine, which is, in any event, very funds to be applied to such trust arise from seldom applicable. The true rule is to har- property owned by her in the District at monize the whole Code, if possible, and to that time. that end the letter of any particular sec- This is in pursuance of the general comity tion may sometimes be disregarded in order existing between the states of the Union, to accomplish the plain intention of the leg- and under that the cemetery association islature. Effect must be given to all the can take and hold the property for the purlanguage employed, and inconsistent expres- poses mentioned in the will, which are persions are to be harmonized to reach the mitted both by the law of the District of real intent of the legislature. Petri v. Columbia and the law of the state of New Commercial Nat. Bank, 142

Bank, 142 U. S. 644, York. 650, 35 L. ed. 1144, 1146, 12 Sup. Ct. But it is contended that the law of the Rep. 325; Bernier v. Bernier, 147 U. S. 242, District prohibits the creation of such trusts 246, 37 L. ed. 152, 154, 13 Sup. Ct. Rep. 244; and refuses to permit them to be carried Groff v. Miller, 20 App. D. C. 353, 357. These out within that District, and that there is two sections can be easily harmonized, and no rule of comity which obtains in such the undoubted intention of the legislature case by which these trusts might be held be thus carried out, by considering the lat- valid when affecting property within the ter section as applying to cases other than District owned by a testator residing therethose specially provided for in § 669. That in at the time of his death, even though the section must be regarded as in full force. party to carry out the terms is a foreign

corporation and the trusts are to be carried, ion the 1st and 12th clauses of the will are out in another state. This claim is made valid. upon the assertion that § 669 of the Code, The objection to the 10th clause is based even if in force at all, refers only to domes- upon the assumption that the 1st and 12th tic associations, and that foreign corpora- clauses are invalid, and that the 10th clause tions, not being within the exception, re- is so interwoven with the 1st and 12th ceive no power from that section, and can- clauses that, if they are pronounced void, not take or hold property situated in the the whole scheme of the will falls, and the District upon these trusts.

10th clause goes down with it. Holding the It may be that § 669 referred only to do- 1st and 12th clauses valid, the contention in mestic corporations when the power was regard to the 10th clause also fails. therein granted them to take such gifts The appellee also urges that, by reason upon the trusts mentioned, and carry them of the direction contained in the will to sell out in the District. The section is cited, as the real estate, it thereby became constructhas been already mentioned, for the pur-ively converted into personalty at the time pose of determining the general policy of of the testatrix's death, and that, regarding Congress in relation to this class of trusts, it as personalty, the trusts created are still and whether, under the law, trusts similar less open to any objection set up by the to those under discussion are permitted in appellants. Although the provisions of the the District. If so, then the result follows subchapter containing § 1023 apply to perfrom the rule of comity already stated, that sonal property generally, as well as to real a trust of that nature, permitted in the Dis- estate, except where, from the nature of the trict, will not be interfered with when it is property, they are inapplicable, yet, when to be operative in a foreign state whose it is seen that, even in regard to real eslaws also permit it. The statute is not re- tate granted to a domestic corporation lied upon as a direct grant to a foreign for the purposes mentioned in this will, a corporation of the right to carry out a trust perpetuity may be created, it seems to be in a foreign state regarding property sit still plainer, if possible, that it would not uated in the District and owned at the time be against the policy of the District, as eviof his death by a resident therein. If the denced by the statute, to affirm the legalstatute granted such a right, of course there ity of a trust of this kind in relation to would be no question of its validity, nor personal property which is to be sold and would there be any in regard to comity. the proceeds taken to another state by a

Trusts of the same kind, although to be foreign corporation for the purpose of adcarried out in a foreign state by a foreign cor- ministration in tnat state. In any aspect poration in regard to property within the in which we can view the case, we think District, cannot be said to violate any pol- the disputed provisions of the will are valid. icy or statute of the District, so long as In regard to costs, the courts below have the statute permits therein grants on simi-charged the appellants with costs, and we lar trusts, although to its own corporations. think the same rule should obtain here. The prohibition of g 1023 would not extend The executor may apply to the Supreme to such a trust so provided for.

Court for such allowance out of the fund Ever since the case of Bank of Augusta as it may think is, under all the circumv. Earle, 13 Pet. 519, 10 L. ed. 274, this doc- stances, proper. trine of comity between states in relation Judgment affirmed. to corporations has been steadily maintained, and it has been recognized by this court in many instances. See, specially,

, Cowell v. Colorado Springs Co. 100 U. S. 55, J. CHARLES MCGUIRE and William Mc25 L. ed. 547; American & F. Christian

Guire, Plfis. in Err., Union v. Yount, 101 U. S. 352, 25 L. ed. 888. LOUIS GERSTLEY and William Gerstley, These cases cover, as we think, the princi

Surviving Partners of the Firm Trading ple involved herein.

as Rosskam, Gerstley, & Company. In the opinion delivered in the court of appeals it was well said that "it cannot be Bonds-securing sales on credit-construcsuccessfully contended that something which tion. the District of Columbia permits to its own

1. Sales of merchandise for which the corporations is so far against its public purchasers have not been called upon to policy that it will not permit persons dom- pay until four months have elapsed are iciled within its territory to devise their covered, whether made on four months' property to be used for the same purpose by the purchasers will pay the moneys due and

credit or not, by a bond conditioned that a foreign corporation authorized by its own to become due on merchandise sold and to charter to receive and administer such be- be sold by the obligees which the purchasers quests." [26 App. D. C. 216.] In our opin "have bound and hereby bind themselves to

V.

pay for in four months after the date of defendants (the two McGuires) brought the each respective purchase.”

case here by writ of error. Pleading - indefiniteness allegations of The declaration in the action alleged the aamage.

execution of a bond by all of the defend2. The particulars of the alleged re-ants in the action, dated the 11th day of sulting damages from the breach by the September, 1903, which bound the defendobligees in a bond given to secure sales on ants in the sum of $5,000, to be paid to the credit. of an alleged special agreement respecting prices, pleaded as an Offset to plaintiffs, subject to the condition therein the claim on such" bond, should be so far stated. The recital in the bond was that set forth that the court may be able to see Monaghan and J. Charles McGuire were detherefrom that such alleged damages are sirous of purchasing merchandise from neither obscure, vague, or shadowy, but plaintiffs, “now and from time to time heremight, and probably would, naturally re-after, which the said John F. Monaghan and sult from the act complained of.

J. Charles McGuire have bound and hereby Pleading-sufficiency of plea in action on bind themselves to pay for in four months bond-breach of parol agreement. 3. Pleas in an action on a bond given and the condition was as follows:

after the date of each respective purchase,”

a to secure sales of merchandise on credit,

: which set up a breach by the obligees of a

"That if the said John F. Monaghan and parol agreement respecting prices, are in- J. Charles McGuire shall strictly and faithsufficient where there is nothing in the fully pay or cause to be paid to said Rossdeclaration or bond which shows the exist- kam, Gerstley, & Company for merchandise ence of any such separate agreement, or that now and hereafter so purchased, the monan alteration in the prices could or would eys due and to become due thereon when have any effect upon the liability of the and as the same shall become due and paysureties.

able, then this obligation shall be null and Pleading-sufficiency of plea as set-off, re- void, otherwise it shall remain in full force coupment, or cause of action.

and virtue." 4. Facts sufficient to constitute a valid set-off, recoupment, or independent cause of

The defendants John F. Monaghan and J. action are not set up by a plea in an action Charles McGuire were principals, and the on a bond given to secure sales of merchan- other defendants, William McGuire and John dise on credit, which avers that the obligees W: Clark, were sureties. Clark sued out a induced one of the principals to dissolve the separate writ of error, which is hereafter partnership existing between them, and to disposed of. It was further alleged in the enter the employment of the obligees for the declaration that, on the days set forth in purpose of ruining the partnership business, the particulars of demand annexed, and but contains no allegation as to how long which formed part of the declaration, the the partnership was to continue.

defendants Monaghan and J. Charles Mc

Guire purchased from the plaintiffs mer[No. 168.]

chandise aggregating the sum of $14,497.16;

that they had paid on account thereof, at Argued January 17, 18, 1907. Decided various times, as shown in said particulars February 25, 1907.

of demand above mentioned, the sum of

$9,100.48, leaving a balance overdue and unIN 'N ERROR to the Court of Appeals of the paid amounting to $5,396.68, which it was.

District of Columbia to review a judg- averred the defendants had not paid or ment which affirmed a judgment of the Su-caused to be paid to the plaintiffs, and that preme Court of the District in favor of the whole balance was still due to the plainplaintiffs in an action on a bond given to tiffs, to their damage of $5,000, with intersecure sales of merchandise on credit. Af- est, besides costs. firmed.

The statement annexed to the declaration See same case below, 26 App. D. C. 193. showed merchandise sold to the defendants

by the plaintiffs, commencing September 24, Statement by Mr. Justice Peckham: 1903, through almost every month from that

The defendants in error, who were the time up to and including July 27, 1904, and plaintiffs below, and are hereafter so called, amounting to the total sum stated in the brought an action in the supreme court of declaration. The credit side of the demand the District of Columbia on December 10, also showed payments by the defendants 1904, against the plaintiffs in error and oth from and including October 27, 1903, up to ers, hereafter called the defendants, on a and including November 11, 1904, and

ll bond, and obtained a judgment, which was amounting to the sum stated in the declaentered February 24, 1905, for $5,000 and ration, and leaving a balance due as stated interest thereon from that date. On appeal therein. the court of appeals of the District affirmed Judgment by confession was obtained the judgment (26 App. D. C. 193), and the l against the defendant Monaghan for $5,000,

with interest and costs. The defendants J. Guire would enter upon said business withCharles McGuire, one of the principals in out means or capital to sustain the same the bond, and William McGuire, one of the other than the cootinuous credit aforesaid, sureties therein, filed two joint pleas to the ana that, in order to perform their part of declaration, and the defendant William Mc- said agreement, they would be required to Guire subsequently filed three separate make sales of said merchandise to their cus. pleas, and, still later, three additional pleas. tomers on credit, to be paid for by said cus

The plaintiffs first demurred to the joint tomers in periods varying according to cirpleas of the defendants J. Charles McGuire cumstances, as stated. The plea then set and William McGuire, and to the three sep- up that, on the date first mentioned (Auarate pleas of the defendant William Mc- gust 25, 1903), the saiu Monaghan and McGuire. They thereafter filed a demurrer to Guire formed a copartnership for the purthe three additional pleas of defendant Wilpose stated, and thereafter furnished to the liam McGuire which had subsequently been plaintiffs a bond (the one in suit) prepared filed. Both demurrers were sustained, and, by the plaintiffs, and which the plaintiffs the defendants refusing to amend their accepted, and the defendants then entered pleas, final judgment was entered against upon and fully established the business menthem.

tioned, and in all respects performed their The first (so numbered in the record) said agreement, so far as they were perjoint plea of defendants J. Charles McGuire mitted by the plaintiffs to perform the same. and William McGuire alleged the indebted. That they had obtained a large number of ness of the plaintiffs to the defendants John customers, to wit, from seventy to cighty, F. Monaghan and J. Charles McGuire in the at great labor and expense, to whom they sum of $10,000, because that, on the 25th sold on the terms mentioned goods purof August, 1903, the plaintiffs entered into chased by them from the plaintiffs, and that, an agreement with Monaghan and J. Charles from the 24th day of September, 1903, to McGuire (the two principals in the bond), the 10th day of December, 1903, the plainby which the plaintiffs agreed that if the tiffs furnished to Monaghan and Mcprincipals would form a copartnership for Guire, from time to time under said carrying on, in the District of Columbia, a agreement, merchandise amounting in the wholesale liquor dealer's business, and deal aggregate to $10,617.55, which they in turn in spirituous liquors, to be furnished by the sold to their customers, excepting only a plaintiffs, and would also furnish to plain portion of said merchandise, which they retiffs a bond in the sum of $5,000, with the turned to, and which was accepted by, the defendants Clark and William McGuire as plaintiffs. That the plaintiffs, on the 10th sureties, conditioned for the payment to the day of December, 1903, wrongfully, and plaintiffs of the amount of the indebted with the intent to destroy the business so ness to be incurred by Monaghan and Mc- established, and to sell goods directly to Guire in the purchase by them from the said customers, drew on said Monaghan and plaintiffs, from time to time, of such mer- McGuire for the sum of $1,500 on their said chandise, that then, in consideration there. account, and sent through various banks the of, the plaintiffs would sell and furnish to draft to them, and on the 11th of DeMonaghan and McGuire, whenever requested cember, 1903, the plaintiffs wrongfully reby them, from time to time, at and for fused to furnish merchandise to the abovecertain prices then specified and agreed upon named defendants at the price stated, but by the parties to that agreement, the mer- demanded a large increase over those prices, chandise required in said business and so and, on the 13th day of January, 1904, to be requested, and would allow to them wrongfully refused to furnish more goods for the goods so requested and required a under said agreement or further to perform continuous credit of $10,000, and that they said agreement, and forced the said Monashould sell such merchandise to their cus- ghan and McGuire to abandon their said tomers in said business upon such terms as business, which they had established at to time and otherwise as they should find great expense, to wit, an expense of not and believe to be the best terms obtainable, less than $10,000 and in which their profits having in view the establishment and main- were very great; whereby the plaintiffs tenance in said District of a demand for wrongfully destroyed the credit and busithe plaintiffs' goods, and that the said Mon-ness of said Monaghan and McGuire and aghan and McGuire would not be required violated the agreement of August 25, 1903, to pay for the goods so sold to their cus- and the said Monaghan and McGuire were tomers until they could make collections and each of them was thereby injured and therefor from their said customers. It was damaged in the sum of $10,000, for which then further understood by and between all sum the said J. Charles McGuire claims the parties to the said agreement, and as judgment against the plaintiffs; and the part thereof, that said Monaghan and Mc- l defendants aver that they are willing that