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Statement by Mr. Justice Peckham: This is an appeal from a decree of the court of appeals of the District of Columbia, affirming a decree of the supreme court of the District construing a construing a will. 26 App. D. C. 209. The bill was filed by the executor of the will of Annie E. I. Andrews, who was a resident of the District at the time of her death, and whose will was there duly admitted to probate March 28, 1904. The supreme court held that all disputed provisions of the will were valid, and entered a decree to that effect, which was affirmed by the court of appeals, on an appeal taken by these appellants separately from the other parties defendant, by leave of the supreme court of the District. All necessary persons were made party to the suit. The deceased left an estate of about $10,000, of which $3,000 consisted of real estate in the city of Washington.
The disputed portions of the will are clauses 1, 10, and 12, and they are set forth in the margin.†
J. Howard Iglehart, the executor, is the son of a deceased brother of the testatrix (mentioned in the first clause of the will), and the two appellants are, respectively, her brother and sister.
The executor, in his bill, alleged his readiness to distribute the estate as directed by the will, but he said that some of the heirs at law disputed the validity of some of its provisions, and hence his appeal to the court for a construction of those clauses.
[31 Stat. at L. 1351, chap. 854]. The devise of the real estate is alleged to be void on that ground, as is also the residuary bequest to the cemetery company, while the direction to erect a monument, as provided in § 10 of the will, it is alleged, must fall with the destruction of the trust, as it is part of the general scheme of the will, and is inseparable from the trust provisions. The executor submitted the questions to the court and did not appeal from the original decree nor from the decree of affirmance by the court of appeals, and he now asks that this court should make proper provision for his protection and that of the estate, in regard to the costs involved by the contention between the defendant and the appellants.
Messrs. Noel W. Barksdale and Andrew Wilson for appellants.
Messrs. Hugh B. Rowland, Walter V. R. Berry, Benjamin S. Minor, and Charles H. Stanley for appellee.
Mr. Justice Peckham, after making the foregoing statement, delivered the opinion of the court:
The first inquiry is in regard to the law existing in the District of Columbia upon the subject of trusts of this nature. There are two sections of the Code of the District of Columbia (§§ 669 and 1023 [31 Stat. at L. 1295 and 1351, chap. 854]) which are involved in the question before us. Section 669 (subchapter 6, relating to "Cemetery Associations," of chapter 18, relating to "Cor
The grounds of the dispute are stated to be that the trusts created in the 1st and 12th clauses of the will are void, as in vio-porations") provides in substance that it lation of the statute of the District of Columbia prohibiting perpetuities and restraints upon alienation. D. C. Code, § 1023
First, I give, devise, and bequeath unto the Greenwood Cemetery Company, of Brooklyn, New York, as trustees, my real property, consisting of a house and lot, known and designated as house No. 88 M. street, northwest, in the city of Washington, District of Columbia, to be held by them in trust for and to the use of my brother, J. H. Iglehart, and his wife, Jennie Iglehart, of Baltimore, Maryland, during their life or the life of either of them; provided, they shall keep the said property in repair and pay the taxes thereon. At their death, or upon their failure to comply with the condition to keep said property in repair and pay the taxes thereon, it is my will and desire that the said property shall be sold, and the proceeds of such sale shall be invested in United States securities, the interest or income from such said investment to be used by the Greenwood Cemetery Company, aforesaid, as trustees, for the purpose of keeping the Andrews Cemetery lot in perpetual good order and condition.
shall be lawful for cemetery associations incorporated under the laws of the District to take and hold any grant, etc., upon trust,
Tenth. It is my will, and I order and direct, that $5,000 be raised out of my estate, to be expended in erecting a suitable monument at the grave of my dearly beloved husband, E. L. Andrews, in Greenwood Cemetery, Brooklyn, New York.
Twelfth. It is my will, and I order and direct, that all the rest and residue of my estate, real, personal, and mixed, wheresoever it may be found, and of whatsoever it may consist, shall be converted into cash, and said cash invested in United States such securities shall be used by the said securities, the interest and income from Greenwood Cemetery Company, of Brooklyn, New York, as trustees, in addition to and together with the trust fund hereinbefore mentioned in clause 1 of this my last will, for the purposes and to the benefit of beautifying and keeping the aforesaid Andrews cemetery-lot in 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 future estate, whether of freehold or lease- section. 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 conveyed, for a longer period than during the continuance of not more than one or more lives in being and twenty-one years thereafter. The provisions of the section are (at the end of the subchapter) made applicable to personal property generally, except where, from the nature of the property, they are inapplicable.
The appellants assert that § 669 is nullified by 1023. They urge that the last section, being the last expression of the legislative will, and being inconsistent with § 669, the last section must prevail. This, although § 669 makes special provision in regard to trusts of this nature and permits their creation, yet, because the latter section does not in terms make exception of the trusts provided for in the earlier section, these trusts, it is urged, are thereby prohibited.
This is not a case for the application of that doctrine, which is, in any event, very seldom applicable. The true rule is to harmonize the whole Code, if possible, and to that end the letter of any particular section may sometimes be disregarded in order to accomplish the plain intention of the legislature. Effect must be given to all the language employed, and inconsistent expressions are to be harmonized to reach the real intent of the legislature. Petri v. Commercial Nat. Bank, 142 U. S. 644, 650, 35 L. ed. 1144, 1146, 12 Sup. Ct. Rep. 325; Bernier v. Bernier, 147 U. S. 242, 246, 37 L. ed. 152, 154, 13 Sup. Ct. Rep. 244; Groff v. Miller, 20 App. D. C. 353, 357. These two sections can be easily harmonized, and the undoubted intention of the legislature be thus carried out, by considering the latter section as applying to cases other than those specially provided for in § 669. That section must be regarded as in full force.
That policy, as indicated in the section, permits in the District exactly what is provided for in this will,-namely, a trust to a cemetery (incorporated) association for the maintenance of a lot and a monument in perpetual good order and condition.
The law in New York in regard to Greenwood cemetery permits the same kind of a trust. Section 6 of chapter 156 of the Laws of New York for 1839, passed April 11, 1839. The law of the District of Columbia, where the testatrix died and where the property was situated, and the law of the state of New York, where the moneys are to be applied by a corporation created by the laws of that state, concur in permitting such trusts as are created in this will, and, under those circumstances, such a trust will be permitted by the courts of the District to be carried out in the state of New York, although the testatrix was domiciled in the District at the time of her death, and the funds to be applied to such trust arise from property owned by her in the District at that time.
This is in pursuance of the general comity existing between the states of the Union, and under that the cemetery association can take and hold the property for the purposes mentioned in the will, which are permitted both by the law of the District of Columbia and the law of the state of New York.
But it is contended that the law of the District prohibits the creation of such trusts and refuses to permit them to be carried out within that District, and that there is no rule of comity which obtains in such case by which these trusts might be held valid when affecting property within the District owned by a testator residing therein at the time of his death, even though the party to carry out the terms is a foreign
The objection to the 10th clause is based upon the assumption that the 1st and 12th clauses are invalid, and that the 10th clause is so interwoven with the 1st and 12th
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 upon the assertion that § 669 of the Code, even if in force at all, refers only to domestic associations, and that foreign corporations, not being within the exception, receive no power from that section, and can-clauses that, if they are pronounced void, not take or hold property situated in the District upon these trusts.
the whole scheme of the will falls, and the 10th clause goes down with it. Holding the 1st and 12th clauses valid, the contention in regard to the 10th clause also fails.
The appellee also urges that, by reason of the direction contained in the will to sell the real estate, it thereby became construct
It may be that § 669 referred only to domestic corporations when the power was therein granted them to take such gifts upon the trusts mentioned, and carry them out in the District. The section is cited, as has been already mentioned, for the pur-ively converted into personalty at the time pose of determining the general policy of Congress in relation to this class of trusts, and whether, under the law, trusts similar to those under discussion are permitted in the District. If so, then the result follows from the rule of comity already stated, that a trust of that nature, permitted in the District, will not be interfered with when it is to be operative in a foreign state whose laws also permit it. The statute is not relied upon as a direct grant to a foreign corporation of the right to carry out a trust in a foreign state regarding property situated in the District and owned at the time of his death by a resident therein. If the statute granted such a right, of course there would be no question of its validity, nor would there be any in regard to comity.
Trusts of the same kind, although to be carried out in a foreign state by a foreign corporation in regard to property within the District, cannot be said to violate any policy or statute of the District, so long as the statute permits therein grants on similar trusts, although to its own corporations. The prohibition of § 1023 would not extend to such a trust so provided for.
Ever since the case of Bank of Augusta v. Earle, 13 Pet. 519, 10 L. ed. 274, this doctrine of comity between states in relation 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, 25 L. ed. 547; American & F. Christian Union v. Yount, 101 U. S. 352, 25 L. ed. 888. These cases cover, as we think, the principle involved herein.
In the opinion delivered in the court of appeals it was well said that "it cannot be successfully contended that something which the District of Columbia permits to its own corporations is so far against its public policy that it will not permit persons domiciled within its territory to devise their property to be used for the same purpose by a foreign corporation authorized by its own charter to receive and administer such bequests." [26 App. D. C. 216.] In our opin
of the testatrix's death, and that, regarding it as personalty, the trusts created are still less open to any objection set up by the appellants. Although the provisions of the subchapter containing § 1023 apply to personal property generally, as well as to real estate, except where, from the nature of the property, they are inapplicable, yet, when it is seen that, even in regard to real estate granted to a domestic corporation for the purposes mentioned in this will, a perpetuity may be created, it seems to be still plainer, if possible, that it would not be against the policy of the District, as evidenced by the statute, to affirm the legality of a trust of this kind in relation to personal property which is to be sold and the proceeds taken to another state by a foreign corporation for the purpose of administration in tnat state. In any aspect in which we can view the case, we think the disputed provisions of the will are valid.
In regard to costs, the courts below have charged the appellants with costs, and we think the same rule should obtain here. The executor may apply to the Supreme Court for such allowance out of the fund as it may think is, under all the circumstances, proper.
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
2. The particulars of the alleged resulting damages from the breach by the obligees in a bond given to secure sales on obligees in a bond given to secure sales on credit, of an alleged special agreement respecting prices, pleaded as an offset to the claim on such bond, should be so far set forth that the court may be able to see therefrom that such alleged damages are neither obscure, vague, or shadowy, but might, and probably would, naturally result from the act complained of. Pleading-sufficiency of plea in action on bond-breach of parol agreement.
3. Pleas in an action on a bond given
The declaration in the action alleged the execution of a bond by all of the defendants in the action, dated the 11th day of September, 1903, which bound the defendants in the sum of $5,000, to be paid to the plaintiffs, subject to the condition therein stated. The recital in the bond was that Monaghan and J. Charles McGuire were desirous of purchasing merchandise from plaintiffs, "now and from time to time hereafter, which the said John F. Monaghan and J. Charles McGuire have bound and hereby bind themselves to pay for in four months. and the condition was as follows: after the date of each respective purchase,"
to secure sales of merchandise on credit. "That if the said John F. Monaghan and which set up a breach by the obligees of a 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 an alteration in the prices could or would have any effect upon the liability of the
Pleading―sufficiency of plea as set-off, recoupment, or cause of action.
now and hereafter so purchased, the moneys due and to become due thereon when and as the same shall become due and payable, then this obligation shall be null and void, otherwise it shall remain in full force 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 induced one of the principals to dissolve the partnership existing between them, and to enter the employment of the obligees for the purpose of ruining the partnership business, but contains no allegation as to how long the partnership was to continue.
W. Clark, were sureties. Clark sued out a separate writ of error, which is hereafter disposed of. It was further alleged in the declaration that, on the days set forth in the particulars of demand annexed, and which formed part of the declaration, the defendants Monaghan and J. Charles McGuire purchased from the plaintiffs merchandise 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.
'N ERROR to the Court of Appeals of the
of demand above mentioned, the sum of $9,100.48, leaving a balance overdue and unpaid amounting to $5,396.68, which it was
I District of Columbia to review a judgaverred 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.
See same case below, 26 App. D. C. 193.
The statement annexed to the declaration I 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 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 the judgment (26 App. D. C. 193), and the
Judgment by confession by confession was obtained against the defendant Monaghan for $5,000,
out means or capital to sustain the same other than the continuous credit aforesaid, and that, in order to perform their part of said agreement, they would be required to make sales of said merchandise to their customers on credit, to be paid for by said customers in periods varying according to circumstances, as stated. The plea then set up that, on the date first mentioned (Au
with interest and costs. The defendants J. | Guire would enter upon said business withCharles McGuire, one of the principals in the bond, and William McGuire, one of the sureties therein, filed two joint pleas to the declaration, and the defendant William McGuire subsequently filed three separate pleas, and, still later, three additional pleas. The plaintiffs first demurred to the joint pleas of the defendants J. Charles McGuire and William McGuire, and to the three separate pleas of the defendant William Mc-gust 25, 1903), the saiu Monaghan and McGuire. They thereafter filed a demurrer to the three additional pleas of defendant William McGuire which had subsequently been filed. Both demurrers were sustained, and, the defendants refusing to amend their pleas, final judgment was entered against them.
The first (so numbered in the record) joint plea of defendants J. Charles McGuire and William McGuire alleged the indebtedness of the plaintiffs to the defendants John F. Monaghan and J. Charles McGuire in the sum of $10,000, because that, on the 25th of August, 1903, the plaintiffs entered into an agreement with Monaghan and J. Charles McGuire (the two principals in the bond), by which the plaintiffs agreed that if the principals would form a copartnership for carrying on, in the District of Columbia, a wholesale liquor dealer's business, and deal in spirituous liquors, to be furnished by the plaintiffs, and would also furnish to plaintiffs a bond in the sum of $5,000, with the defendants Clark and William McGuire as sureties, conditioned for the payment to the plaintiffs of the amount of the indebtedness to be incurred by Monaghan and McGuire in the purchase by them from the plaintiffs, from time to time, of such merchandise, that then, in consideration thereof, the plaintiffs would sell and furnish to Monaghan and McGuire, whenever requested by them, from time to time, at and for certain prices then specified and agreed upon by the parties to that agreement, the merchandise required in said business and so to be requested, and would allow to them for the goods so requested and required a continuous credit of $10,000, and that they should sell such merchandise to their customers in said business upon such terms as to time and otherwise as they should find and believe to be the best terms obtainable, having in view the establishment and maintenance in said District of a demand for the plaintiffs' goods, and that the said Monaghan and McGuire would not be required to pay for the goods so sold to their customers until they could make collections therefor from their said customers. It was then further understood by and between all the parties to the said agreement, and as part thereof, that said Monaghan and Mc
Guire formed a copartnership for the purpose stated, and thereafter furnished to the plaintiffs a bond (the one in suit) prepared by the plaintiffs, and which the plaintiffs accepted, and the defendants then entered upon and fully established the business mentioned, and in all respects performed their said agreement, so far as they were permitted by the plaintiffs to perform the same. That they had obtained a large number of customers, to wit, from seventy to eighty, at great labor and expense, to whom they sold on the terms mentioned goods purchased by them from the plaintiffs, and that, from the 24th day of September, 1903, to the 10th day of December, 1903, the plaintiffs furnished to Monaghan and McGuire, from time to time under said agreement, merchandise amounting in the aggregate to $10,617.55, which they in turn sold to their customers, excepting only a portion of said merchandise, which they returned to, and which was accepted by, the plaintiffs. That the plaintiffs, on the 10th day of December, 1903, wrongfully, and with the intent to destroy the business so established, and to sell goods directly to said customers, drew on said Monaghan and McGuire for the sum of $1,500 on their said. account, and sent through various banks the draft to them, and on the 11th of December, 1903, the plaintiffs wrongfully refused to furnish merchandise to the abovenamed defendants at the price stated, but demanded a large increase over those prices, and, on the 13th day of January, 1904, wrongfully refused to furnish more goods under said agreement or further to perform said agreement, and forced the said Monaghan and McGuire to abandon their said business, which they had established at great expense, to wit, an expense of not less than $10,000 and in which their profits were very great; whereby the plaintiffs wrongfully destroyed the credit and business of said Monaghan and McGuire and violated the agreement of August 25, 1903, and the said Monaghan and McGuire were and each of them was thereby injured and damaged in the sum of $10,000, for which sum the said J. Charles McGuire claims judgment against the plaintiffs; and the defendants aver that they are willing that