court. They were of full age, and competent to elect in which capacity he should act. After this long delay, and in favor of the sureties, they should be held to have elected to deal with him as an agent appointed by themselves, for the settlement of whose accounts they must resort to a court of general jurisdiction. The rights of the personal representatives of this brother and sister are in this respect identical with those that the brother and sister would possess if living and before the court.

Counsel urge with great force that, if the plaintiff in error is liable to account for his transactions at all, it is immaterial whether it is before the probate court or in the court of common pleas under its general jurisdiction. In so far as the judgment will affect him personally, this contention may be true. But, as we have seen, others-the sureties of the plaintiff in error, who are not before the court-may be affected by the judgment; for if, without collusion, a judgment should be rendered against him as executor or trustee under the will, these sureties would be bound by such judgment. If the judgment should be against him as an agent created by the parties, these sureties would not be liable, for their undertaking related only to such acts as might be done by him under and by virtue of the will. These considerations apply equally to those who may be sureties on an appeal or supersedeas bond. These sureties undertake to answer for their principal only in the character in which the action against him is prosecuted. The court of common pleas should have dismissed the proceedings. Judgment reversed.

ANCHOR ELECTRIC CO. v. HAWKES. (Supreme Judicial Court of Massachusetts. Suffolk. May 19, 1898.) CONTRACTS-RESTRAINT OF TRADE-VALIDITY.

An agreement by officers of three separate corporations engaged in manufacturing and dealing in electric goods, who became officers of a new corporation, which purchased the interest and good will of the others, not to engage in a like business or compete in any manner for a period of five years, unless upon withdrawing from such corporation if put at a disadvantage in reference to salary, is not such a contract in restraint of trade as is void as against public policy.

Report from supreme judicial court, Suffolk County; O. W. Holmes, Judge.

Bill by the Anchor Electric Company against Horatio C. Hawkes. Decree for plaintiff, and, at defendant's request, the case was reported to the full bench. Decree for plaintiff. Whipple & Sears, for plaintiff. F. Hutchinson, for defendant.

KNOWLTON, J. The only question which we need to discuss in this case is whether the stipulation on which the bill is founded is void as against public policy. The stipula

tion is as follows: "It is further agreed by all the persons whose names are set hereunder, officers of the corporations hereinabove described, that they will not hereafter at any time, directly or indirectly, as partner, agent, officer of a corporation, or in any other wise, enter into or conduct, or assist in conducting, any business that shall in any way interfere with or compete with the proposed business of said Anchor Electric Company for a period of five years, except that any one of said persons sever connection with said Anchor Electric Company as provided by paragraph six of said agreement of September 29, 1894." The defendant was the business manager of the Hawkes Electric Company, a corporation, and a shareholder therein; Norman Marshall was the business manager of the Iona Manufacturing Company, a corporation, and a shareholder therein; and Phillip M. Reynolds was the business manager of the Brown Electric Company, a corporation, and a shareholder therein. On September 29, 1894, these three persons entered into an agreement in writing to form a new corporation under the laws of Maine, of which Hawkes was to be the president, Reynolds the treasurer, and Marshall the vice president and assistant secretary, and of which these three were to be the managing board of directors. Four other persons were to be selected to make up the full board of directors, of whom one was to be chosen from the board of directors of each of the above-mentioned corporations. Each of these corporations was to sell all its assets to the new corporation at their actual cash value, to be determined as provided in the writing, and an agreed price of a substantial amount fixed by the writing was to be allowed by the new corporation for the good will of each of the three corporations. Each of these three persons was to subscribe for and take one-third of the capital stock of the new corporation, and the assets of each of the three corporations at the value ascertained as provided by the writing were to be received pro tanto by the new corporation in payment for this stock, and the balance was to be paid for by the subscribers in cash. The three persons severally agreed that, so long as the agreement should continue, they would "devote themselves unreservedly to the interests and duties of the office which they occupied, and the promotion in every way of the interests of the corporation to be formed." On the back of the writing was an agreement, signed by the three, fixing the salaries which they were severally to receive in the new corporation, and an additional stipulation as to the allowance for assets of the three corporations. It was provided that the agreement should be binding only as approved by a majority of the shareholders or boards of directors of the three corporations. The Anchor Electric Company was afterwards established as a corporation under the laws of Maine, in accordance with the contract. In this connection there was another

agreement made on October 12, 1894, between the Anchor Electric Company and the other three corporations, whereby the assets and good will of the three were transferred to the new corporation at specified agreed prices, which were paid in stock of the new corporation. A part of this agreement of the three old corporations with each other and with the Anchor Electric Company was in these words: "They will not hereafter at any time continue the business of manufacturing and dealing in electrical goods or specialties of any sort or description, after the fifteenth day of October, 1894, except to sell and dispose of merchandise on hand at this date, not herein transferred to the Anchor Electric Company, and will do no business of any sort or description except such as is necessary in liquidation of said three electric companies." The agreement was signed by each of the four corporations, by their respective officers, Hawkes, Reynolds, and Marshall, and the stipulation in question was the sixth article of the agreement. The judge found that the instrument had been executed in all its parts except this sixth article, and had been adopted by the corporations. There was a provision in the first agreement whereby either of the three persons could withdraw from the new corporation if he was at any time put at a financial disadvantage by the other two in reference to salary or income, and could sell his stock to the others at a price to be agreed upon or fixed by arbitration. The judge before whom the case was heard found that the defendant sold his stock in the new corporation, and withdrew from it, but not under the provision above referred to; and that he has violated, and intends to violate, the sixth article of the last agreement. He found that all the allegations of the bill bearing upon the validity of the sixth article were proved. He also found as a fact, so far as he could properly so find, that the sixth article was reasonable and necessary for the carrying out of the transaction set forth in the agreement, and that the value of the stock of the Hawkes Electric Company was largely dependent upon its being kept. It is found that the business of the plaintiff is of a nature that may extend over the whole country. We are thus brought to a consideration of the law applicable to the case.

From very early times certain contracts in restraint of trade have been held void as against public policy. They are objectionable on two grounds: They tend to deprive the party restrained of the means of earning a livelihood, and they deprive the community of the benefit of his free and unrestricted efforts in his chosen field of activity. The distinction was long ago taken between contracts involving a partial restraint of trade and contracts involving a general restraint of trade; the former being held valid if not unreasonable, and the latter invalid. The changes in the methods of doing business, and the increased freedom

of communication which have come in recent years, have very materially modified the view to be taken of particular contracts in reference to trade. The comparative ease with which one engaged in business can turn his energies to a new occupation if he contracts to give up his old one makes the hardship of such a contract much less for the individual than formerly, and the commercial opportunities which open the markets of the world to the merchants of every country leave little danger to the community from an agreement of an individual to cease to work in a particular field. The general principle that arrangements in restraint of trade are not favored is, however, firmly estab lished in law, and now, as well as formerly, is given effect whenever its application will not interfere with the right of everybody to make reasonable contracts. Whenever onesells a business with its good will, it is for his benefit as well as for the benefit of the purchaser that he should be able to increase the value of that which he sells by a con-tract not to set up a new business in competition with the old. The right to make reasonable contracts of this kind in connection with the sale of the good will of a business is well established. But the particular provisions which are reasonably necessary for the protection of the good will of many kinds of business are very different now from those required in the days of Queen Elizabeth. Then the courts had occasion to inquirewhether a limitation upon the right to engage in the same business as that sold was unreasonable because it included a town instead of a single parish, or extended a distance of ten miles instead of five. Now the house of lords in England has held by a unanimous decision in a recent case that such a limitation which covered the whole world was not unreasonable. Because in early times it seemed inconceivable that an agreement to refrain from establishing a business of the same kind anywhere in the kingdom should be necessary to the protection of the good will of any existing business, it was laid down as an arbitrary rule that agreements so comprehensive in their terms were void. Thus the restriction between a general restraint of trade and a partial restraint of trade grew up. Contracts applying to any territory less than the whole kingdom were considered in reference to their reasonableness, having regard to the purpose for which the contract was made. By the unanimous decision of the house of lords in the case of Nordenfelt v. Maxim, etc., Co. [1894] App. Cas. 535, affirming the unanimous judgment of the court of appeals in [1893] 1 Ch. 630, it is now settled in England that a covenant, unrestricted as to space, not to engage in a particular kind of business for 25 years, made in connection with the sale of the property of a manufacturing establishment, is valid if, having regard to the nature of the business and the

limited number of its customers, it is not wider than is necessary for the protection of the covenantee, nor injurious to the public interests of the country, as were found to be the facts in that case. The earlier English

authorities are reviewed at length in the opinions, and it is unnecessary to refer to them here. Arbitrary rules which were originally well founded have thus been made to yield to changed conditions, and underlying principles are applied to existing methods of doing business. The tendencies in most of the American courts are in the same direction. Manufacturing Co. v. Garst, 18 R. I. 484, 28 Atl. 973; Fowle v. Park, 131 U. S. 88-97, 9 Sup. Ct. 658; Navigation Co. v. Winsor, 20 Wall. 64; Tode v. Gross, 127 N. Y. 480, 28 N. E. 469; Match Co. v. Roeber, 106 N. Y. 473, 13 N. E. 419; Whitney v. Slayton, 40 Me. 224; Association v. Starkey, 84 Mich. 76, 47 N. W. 604. In this commonwealth the general doctrine of the cases seems to be that, in connection with the sale of the good will of a business, the vendor will be bound by any covenant which is reasonably necessary for the preservation and protection of the property which he sells. Pierce v. Fuller, 8 Mass. 223; Perkins v. Lyman, 9 Mass. 522; Stearns v. Barrett, 1 Pick. 443; Palmer v. Stebbins, 3 Pick. 188; Pierce v. Woodward, 6 Pick. 206; Angier v. Webber, 14 Allen, 211; Dean v. Emerson, 102 Mass. 480; Machine Co. v. Morse, 103 Mass. 73; Boutelle v. Smith, 116 Mass. 111; Ropes v. Upton, 125 Mass. 258; Handforth v. Jackson, 150 Mass. 149, 22 N. E. 634. In cases in which such covenants have been held bad they were deemed to go further than was reasonable to give full value to the property sold. Bishop v. Palmer, 146 Mass. 469, 16 N. E. 299, relied on by the defendant, the covenant was unrestricted as to space, and was made in connection with the sale of the property and good will of a local business, not peculiar in its nature, for the protection of which so extensive a covenant was held to be unnecessary. The case of Telegraph Co. v. Crane, 160 Mass. 50, 35 N. E. 98, is not inconsistent with the contention of the plaintiff. It is said in the opinion that the "plaintiff did not buy the good will of a mercantile business, and the defendant, Crane, had no customers for fire alarm and police telegraph machines and apparatus." A ground of the decision stated by a majority of the court is as follows: "The stipulation seems to us to be something more than is reasonably necessary to protect the plaintiff in the enjoyment of the property it bought, even if that should be adopted as the test, upon which we express no opinion." Inasmuch as the stipulation in the present case is only to do no business for five years that shall interfere with or compete with the proposed business of the Anchor Electric Company, it seems quite clear, under

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the authorities in Massachusetts, that the stipulation goes no further than is reasonably necessary to protect the good will of the business sold by the defendant's corporation, and that it should, therefore, be held valid, unless a distinction is to be made between competition with the business of the Anchor Electric Company and competition with the business sold by the defendant and his company. The business sold by the . defendant was chiefly installing and constructing electric plants and appliances. The business of the new corporation included with this that which formerly was done by the other two companies, namely, manufacturing and dealing in electrical appliances. In considering this branch of the case, the nature of the contract of sale should be regarded. The defendant's business was sold to be conducted as a part of a new and more general business. Very likely the price paid for it was larger, and the good will was deemed more valuable, because it was to be so conducted. The plaintiff corporation carried on different, but closely connected, departments of the electrical business, and the different departments were so related to each other that sometimes it would be difficult, if not impossible, to distinguish between competition with one department and competition with another. Moreover, this was a contract for mutual profit in conducting the new business, which, under the findings of the court, has all presumptions in its favor. Each party was to devote himself to the interests of the new corporation. Although the parties provided for the establishment of a corporation, their arrangement was in the nature of a co-partnership. The profits of the new corporation were to be shared by the old corporations, which had sold their property, and become stockholders in the new one. It is difficult to see any good reason why the contract of the three persons to promote the interests of the new corporation should not be binding upon them. This contract necessarily includes the agreement not to enter into competition against the new corporation. The case seems to come within the language of Chief Justice Chapman in Machine Co. v. Morse, 103 Mass. 73-75, where he says the "defendant did not technically become a partner with the plaintiffs, yet he became the associate of the other stockholders in the business, he himself inducing them to join him in it, and having a large interest of the company; and the same principle that enables a partner to do nothing in competition with the business of the firm ought to apply to him." We are of opinion that the stipulation not to compete with the business of the plaintiff corporation is as binding on the defendant as if it were merely not to compete with such business as previously had been done by the Hawkes Electric Company. Decree for the plaintiff.

EVANS V. STRACHAN-HANSCOM. (Supreme Judicial Court of Massachusetts.

Suffolk. May 18, 1898.)

SPECIFIC PERFORMANCE-EVIDENCE. In a suit to compel performance by defendant of a contract to exchange land, defendant testified that she had given the agree ment signed by her to the broker conducting the negotiations, with directions not to deliver it till her husband had signed. This was denied by the broker, but two other witnesses present gave testimony tending to support defendant's statements. Held, that a decree dismissing the bill could not be said to be errone

ous.

Appeal from superior court, Suffolk county. Bill by Charles R. Evans against Kate L. Strachan-Hanscom for specific performance of a contract to exchange land. From a decree dismissing the bill, plaintiff appeals. Affirmed.

J. R. Murphy, for appellant. W. D. Turner, for appellee.

BARKER, J. The plaintiff asks to have the defendant compelled to perform an agreement by which he alleges she was to convey to him a parcel of land in exchange for his equity in another parcel. The case has been heard by a judge of the superior court, who has entered a decree dismissing the bill, and it comes here upon the plaintiff's appeal from that decree. The evidence was taken by a commissioner, whose report of the evidence is before us. There are no rulings of law or findings of fact. The question for decision is whether a decree dismissing the bill could have been properly entered upon any view which the presiding judge might have taken of the evidence. The plaintiff is a real-estate broker, as well as a dealer in real estate. The defendant is married to a second husband. The negotiations out of which the suit arises were carried on by another realestate broker, who has received a commission from the defendant, and who claims one from the plaintiff also; and, at the hearing, the plaintiff testified that he could pay the bill for the commission.

The plaintiff's counsel contends that the bill was dismissed upon the ground that the plaintiff knew when he brought the bill that the defendant could not give a good title to the land which she had contracted to convey, while the defendant chiefly relied upon the fact that the instrument which she signed was never delivered to the plaintiff. There is nothing in the record to show to us what facts were found, or whether the decree was entered upon either of these grounds. The only evidence as to the value of the plaintiff's equity was to the effect that it was worth $5,000. There was considerable testimony as to the value of the land to be conveyed in exchange, and the highest price put upon it by any witness was $4,400. So that, upon the evidence, the failure of the defendant to perform her agreement, if she made

one, was not pecuniarily disadvantageous to the plaintiff. There is at least one view which the presiding judge may have taken of the evidence which would justify his decree dismissing the bill. The written agreement binding the defendant to the bargain was signed by her on a Saturday, and was then placed by her in the hands of the intervening broker, by whom it was handed to the plaintiff on the following Thursday. The defendant contended that it was not placed in the broker's hands for delivery to the plaintiff, and that she never authorized its delivery, and upon this point the evidence was conflicting. While the presiding judge might doubtless have found that the agreement was delivered under the defendant's authority, or that its delivery was subsequently ratified, such a finding is not the only reasonable one which can be made. The defendant testified that the broker came to her place about 7 o'clock on Saturday evening, and stayed until after 9, and that she told him that she preferred waiting until Tuesday until after her husband had signed, and that the broker told her to sign the paper that night, and that he would not give up the paper. This was wholly denied by the broker, and it is plain that either he or the defendant testified to an untrue account of what occurred when the agreement was signed by the defendant, and was handed to the broker. Two other witnesses testified that they were present when the broker obtained the agreement from the defendant, and both gave testimony from which it may be found that the broker received the agreement upon terms which gave him no right to deliver it to the plaintiff without further authority from the defendant. It is true that the acts of the defendant at the registry of deeds favor the inference that she did authorize the delivery of the agreement; but, on the other hand, the defendant's own testimony as to what she said there tends to show that she there claimed that the broker had acted wrongfully in delivering the agreement to the plaintiff. The presiding justice had the witnesses before him, and we cannot say that he was wrong in dismissing the bill. Decree affirmed.

WHITE v. MASSACHUSETTS INST. OF TECHNOLOGY et al. (Supreme Judicial Court of Massachusetts. Suffolk. May 19, 1898.) CONSTRUCTION OF WILLS-ABATEMENT-EXECUTOR AS TRUSTEE-LIFE INTEREST-BEQUESTSTRUSTS-DECEASED DEVISEES.

1. A will bequeathed all testatrix's personal effects to her executors, to be given by them to her friends. A codicil bequeathed the remainder of articles "not previously disposed of." such as money, paintings, plate, etc., "and all other articles of a like nature," to certain persons. Held, that the codicil revoked the provision of the will, since the words "not previously disposed of" should be construed as referring to the lifetime of testatrix.

2. A fund over which testatrix had only a power of appointment will not be proportionately abated where her estate is insufficient to pay all the legacies bequeathed, either on the ground of an express intention, or of Pub. St. e. 127, §§ 28, 29, providing for contribution between legatees.

3. Where money is bequeathed to one person, and on her death to others, and no trustee is named, or the trustee named dies, the executor holds the money in trust to pay only the interest to the person entitled for life.

4. Where a life interest in a chattel, such as a table or picture, is devised, possession should be given the devisee.

5. Where specific personal property is bequeathed to one for life, but with no limitation over or indication of intent to look beyond devisee's death if the property once vested in her, the property will be given to devisee's representatives, where her death occurred before the death of testatrix.

6. During the life of the beneficiary of a trust fund, a court of equity will not instruct the trustees as to the disposition to be made of the fund on termination of the life interest of such beneficiary.

7. A bequest to all testatrix's first cousins does not include issue of first cousins deceased when the words were used; and such issue cannot take, whether or not testatrix knew of the death of their ancestor; nor are they helped by Pub. St. c. 127, § 23, since there is no bequest to their ancestor.

8. In her codicil, testatrix bequeathed $2,500 to each of her first cousins not "remembered by a legacy in the will." Several of such cousins were by the will given a chromo-lithograph as a keepsake. Held, that the legacy referred to should be construed as meaning a pecuniary legacy.

Case reserve from supreme judicial court, Suffolk county; O. W. Holmes. Judge.

Bill for instructions by George White, executor of the will of Ann White Dickenson, making the Massachusetts Institute of Technology and others devisees thereunder defendants. Heard in the supreme judicial court, and reserved for the full court.

F. C. Welch, for executors and trustees. C. E. Grinnell, C. R. Darling, T. N. Perkins, Ropes, Gray & Loring, Jabez Fox, E. R. Thayer, and A. J. Peters, for various defendants.

HOLMES, J. This is a bill for instructions brought by the executor of the will of Ann White Dickenson. The questions all concern the construction of a second codicil, entitled "Memorandum," which seems to have been drawn without the help of a lawyer, and which raises difficulties of the kind to be expected under such circumstances.

The second codicil begins by declaring that the testatrix gives "the remainder of articles, not previously disposed of, and declare that it is my will, or whoever may execute the same, shall deliver the articles of money, furniture, paintings, wearing apparel, personal articles, plate, carriages, horses, harnesses, and all other articles of a like nature hereinafter mentioned, to the respective persons as donors thereof as presents from me." By the third clause of her will, she had given "all my personal effects," enumerated somewhat as above, to her executors,

50 N.E.-33

to be given by them to her friends. The first question is whether the second codicil revokes this clause, or, putting it conversely, whether the second codicil defeats itself at once by the words "not previously disposed of," because the articles as to which it makes elaborate provisions are previously disposed of by the will, and therefore, by the terms of the codicil above quoted, are excluded from its operation. We are of opinion that the words "not previously disposed of," in the codicil, do not refer to a previous disposal by the will. It was the purpose of the codicil to replace the will so far as it went. The words probably refer to a disposition executed by the testatrix in her lifetime. In this sense it is said in article 48 of the same instrument: "Having disposed of many articles treasured in life, and in the event of not disposing of the few others." So, in article 1, she gives a small box "if not previously disposed of," and, in article 2, orders the photographs of her father, mother, and husband to be destroyed "if not previously disposed of." This last provision most obviously could not refer to a previous disposition by will. The third section of the will is revoked by the second codicil. Our answer to this question also answers the similar question, numbered 3, as to the revocation of the sixth or residuary clause of the will by the second codicil; that numbered 4, as to the revocation pro tanto of the second clause of the first codicil; and that numbered 5, as to whether there is any "remainder of articles not previously disposed of" left to be distributed by the second codicil.

In answer to the sixth question, we are of opinion that the word "donors" is used by mistake for "donees."

The father of the testatrix left $80,000 to be deposited in the Hospital Life Insurance Company, in trust to pay the income to the testatrix for life, and gave her a power of disposition over the corpus of the fund by will. The testatrix, after directing by the fourth clause of her will that, if her own residue was not sufficient, this fund should be used to make good any deficiencies in her mother's charitable legacies, by the fifth clause appointed the fund, subject to the foregoing, to the Massachusetts Institute of Technology and the Boston Museum of Fine Arts. There are no deficiencies to be made good under the fourth clause, and the whole fund is well appointed to the two corporations named. This appointment is not modified by the codicils. Indeed, the second is stated not to be intended to dispose of any property over which the testatrix has a power of appointment. The second question put is whether, if the estate of the testatrix is insufficient to pay the legacies given in the second codicil, the fund in question is to abate proportionately. We are of opinion that there should be no such abatement by reason either of any expressed intention or