Obrázky stránek
PDF
ePub
[merged small][ocr errors][merged small][merged small][merged small]

(1904) 36 Tex. Civ. App. 1, 81 S. W. 54.

[ocr errors]

England. Masters V. 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.

[ocr errors][merged small][merged small]

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 (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 v. Parker (1909) 76 N. J. Eq. 447, 74 Atl. 447.

Jersey.

Moore v. Moore

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. Supp. 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. Weidman (1897) 182 Pa. 263, 37 Atl. 863; Close's Estate (1918) 260 Pa. 269, 103 Atl. 822; Tierney's Estate (1892) 2 Pa. Dist. R. 524.

Rhode Island.-Rhode Island Hospital Trust Co. v. Warwick (1909) 29 R. I. 393, 71 Atl. 644.

Canada.-Re Jones (1918) 42 Ont. L. Rep. 62.

Under such a statute a trust may be valid even where the testator gives his entire estate for the purpose. Close's Estate (1918) 260 Pa. 269, 103 Atl. 822.

A statute providing that trusts may be created for the purpose of caring for a private burial lot, in the hands of boards of directors provided for by law, does not render valid the creation of such a fund in the hands of a private trustee. Re Gay (1903) 138 Cal. 552, 94 Am. St. Rep. 70, 71 Atl. 707; Mason v. Bloomington Library Asso. (1909) 237 Ill. 442, 86 N. E. 1044, 15 Ann. Cas. 603; MCCARTNEY V. JACOBS (reported herewith), ante, 1120; Bates v. Bates (1883) 134 Mass. 110, 45 Am. Rep. 305; Re Corle (1901) 61 N. J. Eq. 409, 48 Atl. 1027; Hilliard v. Parker (1909) 76 N. J. Eq. 447, 74 Atl. 447.

V. Precatory provisions; bequests on condition of maintenance of burial place.

The rule against perpetuities is not violated by a provision as to the care of graves of a purely precatory nature, annexed to a valid bequest. Drennan v. Agurs (1914) 98 S. C. 391, 82 S. E. 622.

In conclusion, it may be noted that a provision for care and maintenance of a tomb or burial place, attached as a condition to a valid bequest, and which does not require any portion. of the bequest to be held in trust for the purpose, is valid, though a gift over in case of its breach may be too remote unless for a valid charitable purpose. See Re Tyler [1891] 3 Ch. (Eng.) 253, 60 L. J. Ch. N. S. 686, 65 L. T. N. S. 367, 40 Week. Rep. 7; Re Davies [1915] 1 Ch. (Eng.) 543, W. N. 98, 84 L. J. Ch. N. S. 493, 112 L. T. N. S. 1110, 79 J. P. 291, 59 Sol. Jo. 413; Roche v. M'Dermott (1901) 1 Ir. R. 394, 1 B. R. C. 949; Johnson v. Holifield (1885) 79 Ala. 423, 58 Am. Rep. 596; Re Raab (1899) 42 App. Div. 141, 58 N. Y. Supp. 1043; but see, contra, Piper v. Moulton (1881) 72 Me. 155, and a dictum in Giles v. Boston Fatherless & Widows Soc. (1865) 10 Allen (Mass.) 355. E. S. O.

STATE OF MAINE
V.

INTOXICATING LIQUORS AND VESSELS.

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 Jamaica ginger that it is to be used for flavoring or medicinal purposes, and not as a beverage, does not control the

question whether or not it is within a statute prohibiting the manufacture and sale of intoxicating liquor. [See 15 R. C. L. 376, 377.]

[merged small][merged small][merged small][merged small][ocr errors][merged small][merged small][merged small]

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 Clemment F. Robinson for the State:

The knowledge of the claimant in this case, or his specific intent regarding the use to which the Jamaica ginger was to be put by the purchaser or purchasers, is immaterial.

State v. Frederickson, 101 Me. 37, 6 L.R.A. (N.S.) 186, 115 Am. St. Rep. 295, 63 Atl. 535, 8 Ann. Cas. 48; State v. Intoxicating Liquors, 101 Me. 161, 63 Atl. 666; State v. Eaton, 97 Me. 289, 54 Atl. 723; State v. Hall, 39 Me. 107; Com. v. Hallett, 103 Mass. 452; Compton v. State, 95 Ala. 25, 11 So. 69; Carson v. State, 69 Ala. 235; Stelle v. State, 77 Ark. 441, 92 S. W. 530; Colwell v. State, 112 Ga. 75, 37 S. E. 129; Chapman v. State, 100 Ga. 311, 27 S. E. 789; State v. Muncey, 28 W. Va. 494.

The Jamaica ginger libeled is "intoxicating liquor" under Revised Statutes, chap. 127, § 21.

Heintz v. Le Page, 100 Me. 542, 62 Atl. 605; State v. Piche, 98 Me. 349, 56 Atl. 1052; State v. Starr, 67 Me. 242, 2 Am. Crim. Rep. 390; State v. Wall, 34 Me. 165; State v. McIntosh, 98 Me. 397, 57 Atl. 83; State v. Miller, 92 Kan. 994, L.R.A.1917F, 238, 142 Pac. 979, Ann. Cas. 1916B, 365; Wadsworth v. Dunnam, 98 Ala. 610, 13 So. 597; Mitchell v. Com. 106 Ky. 602, 51 S. W. 17; King v. State, 66 Miss. 502, 6 So. 188.

Messrs. W. C. Eaton and W. A. Connellan, for claimant:

The liquors in controversy are standard brands of medicinal and culinary preparations which for years have been sold by druggists, and would be found in practically every medicine closet and pantry in the state.

State v. Costa, 78 Vt. 198, 62 Atl. 38; King v. State, 58 Miss. 739, 38 Am. Rep. 344; Intoxicating Liquor Cases, 25 Kan. 751, 37 Am. Rep. 284; Russell v. Sloan, 33 Vt. 656; United States v. Wilson, 69 Fed. 144; Mason v. State, 1 Ga. App. 535, 58 S. E. 139; Holcomb v. People, 49 Ill. App. 73; Bertrand v. State, 73 Miss. 51, 18 So. 545; State v.

Kezer, 74 Vt. 50, 52 Atl. 116; Walker v. Dailey, 101 Ill. App. 575; Arbuthnot v. State, 56 Tex. Crim. Rep. 517, 120 S. W. 478; Allen v. Liquid Carbonic Co. 95 C. C. A. 11, 170 Fed. 315.

The liquors in controversy do not come within the definition of "intoxicating liquors," as established by this court.

Heintz v. Le Page, 100 Me. 542, 62 Atl. 605.

Hanson, J., delivered the opinion of the court:

This case is before the court on report upon the libel, monition, and claim filed, the records of proceedings in the municipal court on said libel, monition, and claim, and the testimony taken in the superior court for Cumberland county at the January and May terms, 1918, in two cases involving the same subject-matter; the law court to make a final determination whether the claimant is entitled to said liquors and vessels, or whether they should be forfeited to the state.

There were certain stipulations accompanying the report, which, in view of the agreement of counsel that but one question is before us, will need no further reference.

The liquors libeled consist of a quantity of each of three different grades of Jamaica ginger, seized at claimant's extract manufacturing plant in Portland. The three grades are represented by state's exhibit 1, which is claimed to be a medicinal preparation, made in accordance with the formula prescribed by the United States Pharmacopoeia, and containing 93 per cent of alcohol, and state's exhibits 2 and 3, claimed to be flavoring extracts, and containing, respectively, 28 and 55 per

cent of alcohol.

The question presented is wheth

er any or all of the different grades of extracts represented by said exhibits are intoxicating liquor within the meaning of Revised Statutes, chap. 127, § 21. That section reads as follows: "No person shall at any time, by himself, his clerk, servant or agent, directly or indirectly, sell any intoxicating liquors, of whatever origin; wine, ale, porter, strong beer, lager beer and all other malt liquors, and cider when kept or deposited with intent to sell the same for tippling purposes, or as a beverage, as well as all distilled spirits, are declared intoxicating within the meaning of this chapter; but this enumeration shall not prevent any other pure or mixed liquors from being considered intoxicating."

The claimant's counsel urges the application of the doctrine that a liquid primarily useful and intended for a legitimate use does not come within the meaning of the term, "intoxicating liquor," unless sold to be used as a beverage, even though it may contain a large percentage of alcohol. Counsel cites at length, State v. Costa, 78 Vt. 198, 62 Atl. 38; King v. State, 58 Miss. 739, 38 Am. Rep. 344; Intoxicating Liquor Cases, 25 Kan. 751, 37 Am. Rep. 284; Russell v. Sloan, 33 Vt. 659; United States v. Wilson (D. C.) 69 Fed. 144; Mason v. State, 1 Ga. App. 535, 58 S. E. 139; Holcomb v. People, 49 Ill. App. 73, as sustaining his contention, the last cited only referring specifically to the sale of ginger in any form, and this the essence of ginger.

In State v. Costa, supra, the court says, in a case involving extracts, tinctures, essences, etc.: "In respect to such articles the inquiry is not simply whether they contain more than 1 per cent of alcohol, but there is the further inquiry whether or not the articles are sold to be used as a beverage. In respect to the sale of such preparations the intent governs. If there is no intent to sell these preparations for other than legitimate uses, there is no offense. If, however, the preparation is capable of being used as a bever

age, and is sold or kept for sale with the purpose, intent, or understanding that it is to be used as a beverage, then, if it contains more than 1 per cent of alcohol, an offense is committed."

Here, it will be seen, the intent governs. To the same effect are all the other cases cited, and the court in each instance emphasized its conclusions by defining the difference between a druggist, having for sale liquors or mixtures for medicinal, culinary, or toilet purposes, and a lawbreaker who, under the guise of an honest, harmless salesman, deals out intoxicating liquors of all descriptions to all would-be purchasers who will protect him by their silence, or perjure themselves if he is tried for his offenses. Each court in the order of the citations has put the stamp of condemnation upon the latter class, has drawn the line between the practice of reputable physicians and the prescriptions they write and the medicine they regularly use, and the numerous storekeepers and others who sell without prescription any liquor, alcoholic or otherwise, upon request of any person. But in State v. Barr, 84 Vt. 38, 48 L.R.A. (N.S.) 302, 77 Atl. 914, a case very much later than any Vermont case cited by the claimant's attorney, the court says: "The words, 'intoxicating liquor,' as used in our statute, include spirituous or intoxicating liquor, malt liquors, lager beer, fermented wine, fermented cider, and distilled spirits, and any beverage which contains more than 1 per cent of alcohol by volume at 60 degrees Fahrenheit. Vt. Pub. Stat. 5101."

It will be observed that in all the earlier cases cited the courts were not dealing with Jamaica ginger as known and unlawfully used in this jurisdiction.

But the intent of the claimant that the Jamaica ginger should be used only as a medi- Intoxicating cine or for house- liquor-intent of manufacturer. hold purposes, and not as a beverage, does not control in this case. It is conceded that the

(Me., 106 Atl. 711.)

Jamaica ginger was in claimant's possession, that claimant owned it, and that it was taken by an officer of the law. Claimant's business was that of making and selling Jamaica ginger, and this lot was there for sale. Was the Jamaica ginger intoxicating liquor within the meaning of the statute? The statute is directed in the first instance against the sale of all intoxicating liquor of whatever origin. It then enumerates the malt liquors, cider when kept or deposited with intent to sell for tippling purposes or as a beverage, as well as all distilled spirits, and finally includes within its scope and meaning any and all kinds of liquor capable of producing intoxication, the section concluding, "But this enumeration shall not prevent any other pure or mixed liquors from being considered intoxicating."

Without the aid of the statute, we would find no difficulty in holding that the Jamaica ginger involved in this case is and was at the date of the seizure intoxicating liquor. With the statute before us, we must add our conviction that Jamaica ginger is included in its terms, and was intended to be included by the legislature, and with it all similar compounds capable of being used for tippling purposes, or as a beverage, having alcohol as a constituent, and capable of producing intoxication. There can be no other reasonable, defendable conclusion. It is a matter of common knowledge, in

-Jamaica ginger.

[blocks in formation]

ful, "near beers," produces cases of
intoxication, with which courts have
to deal, together with unnumbered
cases known only to the immediate
friends of the unfortunate tippler.
In Heintz v. Le Page, 100 Me. 542,
62 Atl. 605, an action to recover the
price of intoxicating liquor sold, it
was held: "That any liquor con-
taining alcohol, which is based on
such other ingredients, or by reason.
of the absence of certain ingredi-
ents, that it may be drank by an
ordinary person as a beverage and
in such quantities as to produce in-
toxication, is intoxicating liquor. If
its composition is such that it is
practicable to commonly and ordi-
narily drink it as a beverage, and
drink it in such quantities as to pro-
duce intoxication, then it is intoxi-
cating liquor within the meaning of
the statute.
It is imma-
terial whether the plaintiffs had any
knowledge for what purpose the
liquors were purchased, if they were
in fact intoxicating liquors, and in-
tended by the purchasers for illegal
sale in this state."

The testimony in the case is ample to bring it within the purview and scope of Heintz v. Le Page, supra. The evidence shows that the Jamaica ginger could be and was used by ordinary persons as a beverage, and in such quantities as to produce intoxication, and did in fact produce intoxication. See State v. Frederickson, 101 Me. 37, 6 L.R.A. (N.S.) 186, 115 Am. St. Rep. 295, 63 Atl. 535, 8 Ann. Cas. 48.

In Mitchell v. Com. 106 Ky. 602, 51 S. W. 17, the defendant was charged with selling Jamaica ginger, and there was evidence that it contained about 96 per cent of alcohol. The court said: court said: "Moreover, we think that, without the druggist's evidence, it is a matter of common knowledge that Jamaica ginger is an intoxicant and a spirituous liquor, and it is hardly more necessary to introduce testimony of that fact than it would be of whisky." 15 R. C. L. 377; State v. Miller, 92 Kan. 994, L.R.A.1917F, 238, 142 Pac. 979, Ann. Cas. 1916B, 365 (1917).

« PředchozíPokračovat »