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California.-Re Koppikus (1905) 1 Cal. App. 84, 81 Pac. 732.
Kentucky.-Ford v. Ford (1891) 91 Ky. 572, 60 S. W. 451.
New Jersey. Cool v. Higgins (1873) 23 N. J. Eq. 308; Detwiller v. Hartman (1883) 37 N. J. Eq. 347; Lawrence v. Prosser (1918) N. J. Eq. 104 Atl. 772.
New York.-Wood v. Vandenburgh (1897) 6 Paige, 277; Emans v. Hickman (1877) 12 Hun, 425.
Pennsylvania.-Bainbridge's Appeal (1881) 97 Pa. 482.
Tennessee.-Fite v. Beasley (1883) 12 Lea, 328.
Texas. McIlvain v. Hockaday (1904) 36 Tex. Civ. App. 1, 81 S. W. 54.
England. Masters Masters (1717) 1 P. Wms. 423, 24 Eng. Reprint, 454; Mellick v. Asylum (1821) Jacob, 180, 37 Eng. Reprint, 818, 23 Revised Rep. 21.
The payment of a sum of money to a cemetery association or to the person or persons who have charge of the upkeep of the cemetery, in consideration of an agreement for perpetual care of a burial lot therein, does not create a perpetuity, there being no tying up of property. Rutherford v. Ott (1918) - Cal. App. - , 173 Pac. 490.
In Pfaler v. Raberg (1885) 3 Dem. (N. Y.) 360, it was held that a gift of the residuary estate to the executrix, "to remain with her forever upon the following trust, however: To be devoted and applied in such sums and amounts as she may see fit to preserve and keep in order my burial place or lot, in B. Cemetery," was valid, the object for which the trust was created being one for which the law recognizes the right of a testator to make provision, and (the executrix being empowered to consume the entire residue at once, or to draw upon it from time to time, as in her judgment might seem advisable) not involving an unlawful suspension of the power of alienation.
But in Hartson v. Elden (1892) 50 N. J. Eq. 522, 26 Atl. 561, it was held that a testamentary provision that $2,000 "may be employed in building a monument for" testator's parents, sis
ter and brothers, being permissive, and not imperative, was bad under the rule against perpetuities as a power that might never be exercised, or might not be exercised within lives in being at its execution and twenty-one years.
IV. Effect of statutory provisions.
In some jurisdictions the creation of a perpetual trust for the purpose of maintaining a burial lot is permitted by statute. See
California.—Re Gay (1903) 138 Cal. 552, 94 Am. St. Rep. 70, 71 Pac. 707.
Connecticut. Bronson v. Strouse (1889) 57 Conn. 147, 17 Atl. 699.
District of Columbia.-Iglehart v. Iglehart (1907) 204 U. S. 478, 51 L. ed. 575, 27 Sup. Ct. Rep. 329.
Georgia.-See Jones v. Habersham (1882) 107 U. S. 174, 27 L. ed. 401, 2 Sup. Ct. Rep. 336.
Illinois.—Mason v. Bloomington Library Asso. (1909) 237 Ill. 442, 86 N. E. 1044, 15 Ann. Cas. 603; MCCARTNEY V. JACOBS (reported herewith), ante, 1120.
Massachusetts. Bates V. Bates (1883) 134 Mass. 110, 45 Am. Rep. 305; Gates v. White (1885) 139 Mass. 353, 1 N. E. 285; Re Bartlett (1895) 163 Mass. 509, 40 N. E. 899; Green v. Hogan (1891) 153 Mass. 462, 27 N. E. 413; Morse v. Natick (1900) 176 Mass. 510, 57 N. E. 996.
New Hampshire.-Webster v. Sughrow (1898) 69 N. H. 380, 48 L.R.A. 100, 45 Atl. 139; Rollins v. Merrill (1900) 70 N. H. 436, 48 Atl. 1088; Winslow v. Stark (1916) - N. H. 97 Atl. 979. New Jersey.
Moore Moore (1892) 50 N. J. Eq. 554, 25 Atl. 403; Hartson v. Elden (1893) 50 N. J. Eq. 522, 26 Atl. 561; Re Corle (1901) 61 N. J. Eq. 409, 48 Atl. 1027; Hilliard y. Parker (1909) 76 N. J. Eq. 447, 74 Atl. 447.
New York.-Re Schuler (1893) Power, 490, 24 N. Y. Supp. 847; First Presby. Church v. McKallor (1898) 35 App. Div. 98, 54 N. Y. Slipp. 740; Driscoll v. Hewlett (1910) 198 N. Y. 297, 91 N. E. 784, affirming (1909) 132 App. Div. 125, 116 N. Y. Supp. 466; Re Perkins (1910) 68 Misc. 255, 124 N. Y. Supp. 998.
Pennsylvania.-Nauman v. Weid- V. Precatory provisions; bequests on man (1897) 182 Pa. 263, 37 Atl. 863; condition of maintenance of burial Close's Estate (1918) 260 Pa. 269, 103
place. Atl. 822; Tierney's Estate (1892) 2 The rule against perpetuities is not Pa. Dist. R. 524.
violated by a provision as to the care Rhode Island.-Rhode Island Hos- of graves of a purely precatory napital Trust Co. v. Warwick (1909) ture, annexed to a valid bequest. Dren29 R. I. 393, 71 Atl. 644.
nan v. Agurs (1914) 98 S. C. 391, 82 Canada.—Re Jones (1918) 42 Ont.
S. E. 622. L. Rep. 62.
In conclusion, it may be noted that Under such a statute a trust may be a provision for care and maintenance valid even where the testator gives his
of a tomb or burial place, attached entire estate for the purpose. Close's
as a condition to a valid bequest, and Estate (1918) 260 Pa. 269, 103 Atl.
which does not require any portion 822.
of the bequest to be held in trust for A statute providing that trusts may
the purpose, is valid, though a gift be created for the purpose of caring
over in case of its breach may be too
remote unless for a valid charitable for a private burial lot, in the hands
purpose. See Re Tyler  3 Ch. of boards of directors provided for by
(Eng.) 253, 60 L. J. Ch. N. S. 686, 65 law, does not render valid the creation
L. T. N. S. 367, 40 Week. Rep. 7; Re of such a fund in the hands of a pri
Davies (1915) 1 Ch. (Eng.) 543, W. vate trustee. Re Gay (1903) 138 Cal.
N. 98, 84 L. J. Ch. N. S. 493, 112 L. 552, 94 Am. St. Rep. 70, 71 Atl. 707 ; T. N. S. 1110, 79 J. P. 291, 59 Sol. Jo. Mason v. Bloomington Library Asso. 413; Roche v. M'Dermott (1901) 1 Ir. (1909) 237 Ill. 442, 86 N. E. 1044, 15 R. 394, 1 B. R. C. 949; Johnson v. HoliAnn. Cas. 603; MCCARTNEY V. JACOBS field (1885) 79 Ala. 423, 58 Am. Rep. (reported herewith), ante, 1120; Bates 596; Re Raab (1899) 42 App. Div. 141, V. Bates (1883) 134 Mass. 110, 45 58 N. Y. Supp. 1043; but see, contra, Am. Rep. 305; Re Corle (1901) 61 N. Piper v. Moulton (1881) 72 Me. 155, J. Eq. 409, 48 Atl. 1027; Hilliard v. and a dictum in Giles v. Boston Fath. Parker (1909) 76 N. J. Eq. 447, 74 erless & Widows Soc. (1865) 10 Allen Atl. 447.
E S. O.
STATE OF MAINE
DOLAN & FURNIVAL COMPANY, Claimant.
Maine Supreme Judicial Court - June 5, 1919.
(- Me. —, 106 Atl. 711.) Intoxicating liquor - Jamaica ginger.
1. Jamaica ginger manufactured for flavoring and medicinal purposes, and containing from 28 to 90 per cent of alcohol, is within a statute forbidding the sale of intoxicating liquors of whatever origin.
[See note on this question beginning on page 1137.] - intent of manufacturer.
2. The intent of a manufacturer of question whether or not it is within a Jamaica ginger that it is to be used statute prohibiting the manufacture for flavoring or medicinal purposes, and and sale of intoxicating liquor. not as a beverage, does not control the [See 15 R. C. L. 376, 377.]
(- Ne. -, 106 Atl. 711.) Evidence - judicial notice - Jamaica
that Jamaica ginger is used as a subginger as intoxicant.
stitute for other intoxicants. 3. Judicial notice is taken of the fact
[See 15 R. C. L. 377.]
REPORT by the Supreme Judicial Court for Cumberland County for the determination by the Law Court of a question arising on appeal from the Superior Court, in proceedings for the seizure and forfeiture of certain intoxicating liquors. Judgment for the state.
The facts are stated in the opinion of the court.
Messrs. Carroll L. Beedy and Clem- Kezer, 74 Vt. 50, 52 Atl. 116; Walker ment F. Robinson for the State: v. Dailey, 101 Ill. App. 575; Arbuthnot
The knowledge of the claimant in v. State, 56 Tex. Crim. Rep. 517, 120 S. this case, or his specific intent regard- W. 478; Allen v. Liquid Carbonic Co. ing the use to which the Jamaica gin- 95 C. C. A. 11, 170 Fed. 315. ger was to be put by the purchaser or
The liquors in controversy do not purchasers, is immaterial.
come within the definition of "intoxiState v. Frederickson, 101 Me. 37, cating liquors," as established by this 6 L.R.A.(N.S.) 186, 115 Am. St. Rep.
court. 295, 63 Atl. 535, 8 Ann. Cas. 48; State Heintz v. Le Page, 100 Me. 542, 62 v. Intoxicating Liquors, 101 Me. 161,
Atl. 605. 63 Atl. 666; State v. Eaton, 97 Me. 289, Hanson, J., delivered the opinion 54 Atl. 723; State v. Hall, 39 Me. 107;
of the court: Com. v. Hallett, 103 Mass. 452; Comp
This case is before the court on ton v. State, 95 Ala. 25, 11 So. 69; Carson v. State, 69 Ala. 235; Stelle v.
report upon the libel, monition, and State, 77 Ark. 441, 92 S. W. 530; Col
claim filed, the records of proceedwell v. State, 112 Ga. 75, 37 S. E. 129; ings in the municipal court on said Chapman v. State, 100 Ga. 311, 27 S. E. libel, monition, and claim, and the 789; State v. Muncey, 28 W. Va. 494. testimony taken in the superior
The Jamaica ginger libeled is “intox- court for Cumberland county at the icating liquor" under Revised Statutes,
January and May terms, 1918, in chap. 127, 21.
two cases involving the same subHeintz v. Le Page, 100 Me. 542, 62 Atl. 605; State v. Piche, 98 Me. 349, 56
ject-matter; the law court to make
a final determination whether the Atl. 1052; State v. Starr, 67 Me. 242, 2 Am. Crim. Rep. 390; State v. Wall,
claimant is entitled to said liquors 34 Me. 165; State v. McIntosh, 98 Me. and vessels, or whether they should 397, 57 Atl. 83; State v. Miller, 92 Kan.
be forfeited to the state. 994, L.R.A.1917F, 238, 142 Pac. 979, There were certain stipulations Ann. Cas. 1916B, 365; Wadsworth v.
accompanying the report, which, in Dunnam, 98 Ala. 610, 13 So. 597; view of the agreement of counsel Mitchell v. Com. 106 Ky. 602, 51 S. W. that but one question is before us, 17; King v. State, 66 Miss. 502, 6 So.
will need no further reference. 188.
The liquors libeled consist of a Messrs. W. C. Eaton and W. A. Connellan, for claimant:
quantity of each of three different The liquors in controversy are stand
grades of Jamaica ginger, seized at ard brands of medicinal and culinary claimant's extract manufacturing preparations which for years have been plant in Portland. The three grades sold by druggists, and would be found are represented by state's exhibit 1, in practically every medicine closet and which is claimed to be a medicinal pantry in the state.
preparation, made in accordance State v. Costa, 78 Vt. 198, 62 Atl. 38; with the formula prescribed by the King v. State, 58 Miss. 739, 38 Am.
United States Pharmacopeia, and Rep. 344; Intoxicating Liquor Cases,
containing 93 per cent of alcohol, 25 Kan. 751, 37 Am. Rep. 284; Russell
and state's exhibits 2 and 3, claimed v. Sloan, 33 Vt. 656; United States v. Wilson, 69 Fed. 144; Mason v. State,
to be flavoring extracts, and con1 Ga. App. 535, 58 S. E. 139; Holcomb taining, respectively, 28 and 55 per v. People, 49 Ill. App. 73; Bertrand v. cent of alcohol. State, 73 Miss. 51, 18 So. 545; State v. The question presented is whether any or all of the different grades age, and is sold or kept for sale with of extracts represented by said ex- the purpose, intent, or understandhibits are intoxicating liquor within ing that it is to be used as a beverthe meaning of Revised Statutes, age, then, if it contains more than 1 chap. 127, § 21. That section reads per cent of alcohol, an offense is as follows: "No person shall at any committed.” time, by himself, his clerk, servant Here, it will be seen, the intent or agent, directly or indirectly, sell governs. To the same effect are all any intoxicating liquors, of what
the other cases cited, and the court ever origin; wine, ale, porter, strong in each instance emphasized its conbeer, lager beer and all other malt clusions by defining the difference liquors, and cider when kept or de- between a druggist, having for sale posited with intent to sell the same liquors or mixtures for medicinal, for tippling purposes, or as a bever- culinary, or toilet purposes, and a age, as well as all distilled spirits, lawbreaker who, under the guise of are declared intoxicating within the an honest, harmless salesman, deals meaning of this chapter; but this out intoxicating liquors' of all deenumeration shall not prevent any scriptions to all would-be purchasother pure or mixed liquors from ers who will protect him by their being considered intoxicating.” silence, or perjure themselves if he
The claimant's counsel urges the is tried for his offenses. Each court application of the doctrine that a in the order of the citations has put liquid primarily useful and intended the stamp of condemnation upon the for a legitimate use does not come latter class, has drawn the line bewithin the meaning of the term, tween the practice of reputable “intoxicating liquor," unless sold to physicians and the prescriptions be used as a beverage, even though they write and the medicine they it may contain a large percentage of regularly use, and the numerous
, alcohol. Counsel cites at length, storekeepers and pthers who sell State v. Costa, 78 Vt. 198, 62 Atl. without prescription any liquor, al38; King v. State, 58 Miss. 739, 38 coholic or otherwise, upon request Am. Rep. 344; Intoxicating Liquor of any person. But in State v. Barr, Cases, 25 Kan. 751, 37 Am. Rep. 84 Vt. 38, 48 L.R.A.(N.S.) 302, 77 284; Russell v. Sloan, 33 Vt. 659; Atl. 914, a case very much later than United States v. Wilson (D. C.) 69 any Vermont case cited by the Fed. 144; Mason v. State, 1 Ga. App. claimant's attorney, the court says: 535, 58 S. E. 139; Holcomb v. Peo- "The words, 'intoxicating liquor,' as ple, 49 Ill. App. 73, as sustaining used in our statute, include spirithis contention, the last cited only uous or intoxicating liquor, malt referring specifically to the sale of liquors, lager beer, fermented wine, ginger in any form, and this the fermented cider, and distilled spiressence of ginger.
its, and any beverage which conIn State v. Costa, supra, the court tains more than 1 per cent of alcohol says, in a case involving extracts, by volume at 60 degrees Fahrenheit. tinctures, essences, etc. :
Vt. Pub. Stat. 5101." spect to such articles the inquiry is It will be observed that in all the not simply whether they contain earlier cases cited the courts were more than 1 per cent of alcohol, but not dealing with Jamaica ginger as there is the further inquiry whether known and unlawfully used in this or not the articles are sold to be jurisdiction. used as a beverage. In respect to
But the intent of the claimant the sale of such preparations the in
that the Jamaica ginger should be tent governs. If there is no intent
used only as a medi
Intoxicating to sell these preparations for other cine or for house- liquor-intent of han legitimate uses, there is no of- hold purposes, and
manufacturer. fense. If, however, the preparation not as a beverage, does not control is capable of being used as a bever- in this case. It is conceded that the (- Me. —, 106 Atl. 711.) Jamaica ginger was in claimant's ful, “near beers," produces cases of possession, that claimant owned it, intoxication with which courts have and that it was taken by an officer to deal, together with unnumbered of the law. Claimant's business was cases known only to the immediate that of making and selling Jamaica friends of the unfortunate tippler. ginger, and this lot was there for In Heintz v. Le Page, 100 Me. 542, sale. Was the Jamaica ginger in- 62 Atl. 605, an action to recover the toxicating liquor within the mean- price of intoxicating liquor sold, it ing of the statute? The statute is was held: "That any liquor condirected in the first instance against taining alcohol, which is based on the sale of all intoxicating liquor of such other ingredients, or by reason whatever origin. It then enumer- of the absence of certain ingrediates the malt liquors, cider when ents, that it may be drank by an kept or deposited with intent to sell ordinary person as a beverage and for tippling purposes or as a bever- in such quantities as to produce inage, as well as all distilled spirits, toxication, is intoxicating liquor. If and finally includes within its scope its composition is such that it is and meaning any and all kinds of practicable to commonly and ordiliquor capable of producing intoxi- narily drink it as a beverage, and cation, the section concluding, “But drink it in such quantities as to prothis enumeration shall not prevent duce intoxication, then it is intoxiany other pure or mixed liquors cating liquor within the meaning of from being considered intoxicat- the statute.
It is immaing."
terial whether the plaintiffs had any Without the aid of the statute, knowledge for what purpose the we would find no difficulty in hold- liquors were purchased, if they were ing that the Jamaica ginger in- in fact intoxicating liquors, and involved in this case is and was at the tended by the purchasers for illegal date of the seizure intoxicating sale in this state." liquor. With the statute before us, The testimony in the case is ample we must add our conviction that to bring it within the purview and Jamaica ginger is included in its scope of Heintz v. Le Page, supra.
terms, and was in- The evidence shows that the Ja-Jamaica
tended to be includ- maica ginger could be and was used ginger.
ed by the legisla- by ordinary persons as a beverage, ture, and with it all similar and in such quantities as to procompounds capable of being used duce intoxication, and did in fact for tippling purposes, or as a bever- produce intoxication. See State v. age, having alcohol as a constituent, Frederickson, 101 Me. 37, 6 L.R.A. and capable of producing intoxica- (N.S.) 186, 115 Am. St. Rep. 295, tion. There can be no other reason- 63 Atl. 535, 8 Ann. Cas. 48. able, defendable conclusion. It is a In Mitchell v. Com. 106 Ky. 602, 51 matter of common knowledge, in S. W. 17, the defendant was charged
which all courts with selling Jamaica ginger, and EvidenceJadictal notice- share, a knowledge
share, a knowledge there was evidence that it contained Jamaica singer antedating
recent about 96 per cent of alcohol. The legislation or agi
or agi- court said: “Moreover, we think tation, that for years Jamaica that, without the druggist's eviginger, whatever its merits may be, dence, it is a matter of common has been used as a substitute for knowledge that Jamaica ginger is other intoxicants. This knowledge an intoxicant and a spirituous liin the last few years has increased, quor, and it is hardly more necessary and in recent terms of our own to introduce testimony of that fact court has come home to us in repeat- than it would be of whisky.” 15 R. ed instances where Jamaica ginger C. L. 377; State v. Miller, 92 Kan. is used as a base, and, mixed with 994, L.R.A.1917F, 238, 142 Pac. 80-called, and almost equally harm- 979, Ann. Cas. 1916B, 365 (1917).