to the first page, although its provisions (Before A'Beckett J.) entitled in remainder, and I should have been glad to have given an order giving effect to it, but I cannot properly do so. The Settled Estates Act was not passed to enable persons to change the trusts upon which property was held, and where the consent of married women to a sale under the Act is subject to the sale moneys being applied otherwise than as provided by the Act, however beneficial the arrangement may be, the consent is not such as the Act Oct. 4th Nov. 22nd requires. In this case all the petitioners but one are of age. If all were of age a sale could be made, and the family arrangement could be carried out without the assistence of the Court. It would be better to sell without the Court if doing so did not involve long delay. If all the married women were prepared to give an unconditional assent to the petition, fully aware that the result of an order for sale would be that the moneys would have to be invested by the Court upon the trusts of the settlement, and not expecting the Court to give effect to the family arrangement, an order might be made on the petition now presented, but unless and until they are all so agreed, it would be useless to proceed further with the separate examinations which are necessary preliminaries to making an order under the Act. Solicitors -Duffy and Wilkinson. (Before Higinbotham, C.J.) IN RE MAHONY'S SETTLED ESTATE. "Real Property Statute 1864" (No. 213), Part V. s.s. 89, 95, 114-Petition for sale of settled estate, Consent of persons interested. When a petition is presented for the saleof estate settled within the meaning of the above mentioned Statute, the consent of any person, whose consent is necessary, must be unconditional, [compare In re Walls Settled Estate 10 A.L.T. p. 140]. Petition for the sale of land settled by an indenture of settlement, dated the 5th July 1861 executed by Michael Mahony as settlor. Shiels appeared in support. The facts, so far as is material. sufficiently appear from the judgment. Cur, adv. vult. HIS HONOR, in giving judgment, said :-A petition has been presented for the sale of property settled upon trust for one of the petitioners for life, and after her death for the thirteen children of the settlor, who are co-petitioners. Several of the children are married women, and all but one of them are of age. On examining one of the married women under section 114 of the Real Property Statute to ascertain that she understood the nature and effect of the application, I found that she consented in the expectation that if the property were sold the trusts of the original settlement would be altered, that part of the purchase money would be applied in the purchase of a property to which the tenant for life was to be absolutely entitled, part to be divided at once between the persons now entitled in remainder, and only the balance to be invested upon the trusts of the original settlement. An agreement to this effect appears to have been signed by the persons interested. This qualified consent to the petition raises a difficulty similar to that which I had to consider In re Wall's Settled Estate (10 A.L.T. 140). It is necessary that in the case of the married women, one of whom is an infant, I should ascertain that they understand the effect of the petition, and I find in one instance, and I presume that it would be found in all the others, that the consent is conditional upon this alteration of the trusts of the settlement, which the Court has no power to effect The proposed family arrangement appears to be very advantageous to the children Oct. 8th, 9th, Nov. 16th TRUSTEES EXECUTORS AND AGENCY Co. LTD. V. Will-Bequest of corpus--"Duties on Estates of A mere direction in a will to divide corpus on a Sec. 24 (No. 388) is not to be construed strictly [It is not clear on what principle the Court has acted in directing that the duty to be deducted from the interests of the infant defendants is to be calculated at the same rate as is payable under sec. 24, (No. 388).] Action instituted by the Trustees Executors and Agency Company Limited, as plaintiffs, against Helen Terrill, William George White (or Terrill) Helen Nina White (or Terrill) Sophia White and George Frederick White as defendants. By his will dated the 7th February 1887, William White gave all his property, real and personal, to Robert Black on trust to permit the defendant Helen Terrill to have the sole use of the testator's residence at Box Hill. He directed his two houses in Bridge Street, Richmond, to be sold and the proceeds invested on mortgage, the trustee to pay out of the annual income thereof £1 per week to the defendant Sophia White, and to pay the balance to the defendant Helen Terrill for the support, &c., of herself and her two children the defendants W. G. White and Helen N. White, who were borne by her to the testator. The will then proceeded “I direct that after the death of the said Helen Terrill the whole of my estate be converted into money and invested until the youngest of the said children shall attain the age of 21 and my years, said wife shall die, and then direct that my said estate shall be divided equally between the said children William George White and the said Helen Nina White. And I direct that the annual income derivable from the money now on deposit to my credit in the Victorian Permanent Building Society, Collins Street, Melbourne, be paid to the said Helen Terrill during her life, for the support of herself and the said children." The testator died on the 12th February, 1887 administration c.t.a. was granted to the plaintiff (who had been authorised to apply for a grant by the trustee and executor appointed by the will) on the 10th March, 1887. In addition to the property specially mentioned in the will the testator left per sonal property of the value of £1650. As doubts had arisen as to the right to the income of the property, not specifically mentioned, until the death of Helen Terrill, and also, as to the mode of apportioning the duty paid between the different beneficiaries the present action was instituted. The Higgins, for the plaintiff, stated the case. matter has come before the court by action owing to the fact that one of the defendants, George Frederick White, is out of the jurisdiction; there is no power to serve an originating summons out of the jurisdiction. As to the apportionment of duty: "Duties on Estates of Deceased persons Statute" 1870 section 11; Hurst v. Hurst, 12 V.L.R. 93. Weigall for the defendant, Helen Terrill-The whole scheme of the testator's will is that his wife should have an annuity for her life, and that the remainder of the property should go to the Terrills. The court leans againt an intestacy. Accordingly either Mrs Terrill is entitled or Mrs Terrill's children. If it be held that Mrs Terrill's children are entitled to the intermediate income, Mrs Terrill would still have an interest as being the guardian. "The Marriage and Matrimonial Causes Statute Amendment Act 1883" section 11; Ronayne v. Ansted (11 V.L.R. 28); In the will of Moffatt (3 V.L.R. (E) 166.) As to costs the undisposed of personalty should bear the expense. All persons are entitled to their costs when there is a dispute as to the construction of the will. Allen v. Edmonds, (12 V.L.R. 789.) Agg for the defendants William George White and Helen N. White. Where there is a blinded gift of realty and personalty the persons entitled to the corpus are entitled to the income until the corpus becomes payable. Genery v. Fitzgerald (Jac. 468), Gibson v. Montford (1 Ves. 491), Glanvill v. Glanvill (2 Mer. 38), Ackers v. Phipps (9 Bl. N.S. 43), Lachlan v. Reynolds (9 Ha. 796, 799), Campbell for the defendant, Sophia White-There is an intestacy, as there is no direct bequest or bequest by implication; Jarman (4th Ed.) p.p. 839-40. [Leake v. Robinson (2 Mer. 363), Cousins v. Schroder Sim. 23) Stephens v. Hale (2 Dr. & Sm. 22) cited. [HIS HONOR intimated a wish to hear counsel for the plaintiff company on the subject of costs, it being determined by the plaintiff to offer no opinion as to the correct construction of the will.] Higgins, in reply, confined his observations to the question of costs. It would be improper for a trustee to offer any opinion as to the dispute arising on the will. All the recent English and Colonial cases are to that effect. The scheme of rules as to originating summons is that a trustee should so act. Section 60 of the "Statute of Trusts 1864" is practically a dead letter; the court will not construe a will under it. The rule is the same whether the trustee be a company or an individual; Trustees, &c., Company v. Foy, 10 V.L.R. (E) 267. [Morgan v. Daly 165 (2nd Ed.) referred to.] Cur, adv. vult HIS HONOR, in giving judgment, said:-The plaintiff company is administrator with the will annexed of the estate of William White, having been authorised to apply for administration by Robert Black, the sole executor named in the will. The testator directed that Ellen Terrill, with whom he went through the form of marriage on November 16, 1880, his wife being still alive, and by whom he had two children, William George and Helen Nina, should have the sole use of his house and ground at Box-hill, and the househould furniture and goods, chattels, and effects therein, for her life. Out of the income arising from the proceeds of his two houses and land in Bridgeroad, Richmond, which he directed to be sold, he gave an annuity to his wife, Sophia White; and the balance of the income from such proceeds, together with the income from money on deposit to his credit in a building society, he bequeathed to Helen Terrill, for the support and maintenance of herself and her two children. In addition to the property thus specifically mentioned, the testator was possessed at the time of his death of shares in a building society valued at £1,000, and of other personal property out of which the probate duty, amounting to £162 17s. 1d., and the other debts of the testator have been since paid. The will directed that on the death of Helen Terrill the whole of the testator's estate should le converted into money, and invested until the younger of the two children should attain the age of 21 years, and his wife should die, and that his estate should then be divided equally between the said children. The defendants, Sophia White, the wife of the testator, and George Frederick White, his brother, are the only two next of kin. The first question gencies which may arise after many years, and it held arising in this case is who are entitled to the income that shares of children which became vested in interest derived from the personal property of the testator not specifically mentioned in the will? Helen Terrill's claim to it cannot, I think, be sustained. There is no indication of an intention that she should derive during her life any benefit from this part of the testator's property. Nor in my opinion do the children take any except a contingent future interest under the will in the corpus of this part of the testator's estate. There are no words of present bequest, nor any specific bequest to take effect in futuro. It is only from the general direction that the whole of his estate should be converted into money after the death of Helen Terrill, and should be ultimately divided between the two children upon the occurrence of two events, one of them being contingent that an intention of the testator to dispose of the corpus of this part of his property in favour of the children can be inferred. I think that the testator must be deemed to have died intestate as to this income until the death of Helen Terrill. The plaintiff company also seeks directions as to the parts of the estate from which deductions for probate duty are to be made, and as to the mode in which the amount to be deducted is to be ascertained. The testator has given no special directions in his will as to the payment of the duty. The chief difficulties connected with the apportionment of the duty have arisen under the provisions of the the 24th section in favour of a widow and of children, and are first encountered in the master in equity's office when the duty is calculated upon the final balance appearing upon the statement of the administrator or executor. Where a vested interest in the whole or in a specific part of the real or personal estate of a testator or intestate comes to a widow or to children at the death of a testator or intestate, the calculation of the duty chargeable upon the property devised or bequeathed by the will or upon the distributive shares in the case of intestacy, appears free from difficulty. But where a partial interest as distinct from an absolute interest in a part, not vested at the time of the death, is given to a widow or children, or is created under the statute upon partial intestacy, doubts seem still to exist as to the proper mode of making the calculation upon the final balance. It was held in some of the earlier decisions that the provisions of the 24th section establishing as they do an exception to the general rule should be construed strictly against those who invoke their benefit. This view was dissented from by Stephen J. in the Vill of Wilsmore (2 V.L.R. (I. P. and M.), 30) and by the judicial committee of the Privy Council in Armytage v. Wilkinson (3 App. Cas. 355). In accordance with the decision of the Court of Appeal in the latter case a liberal construction must now be given in all cases to the words of exception in favour of widows and children. The Court, in the same case, appeared to disapprove of the view expressed in Re Hamilton (3 A.J.R. 95) that it is the policy of the act not to deal with the contin under a will at the death of a testator, though liable to be divested upon a contigency before they should become absolute and indefeasible, were chargeable with half duty only. The Court neither affirmed the corectness of the ruling of the majority of the Supreme Court in the Will of Wilsmore (2 V.L.R. (I. P and M). 30) that where the corpus or the part of a corpus of the estate on a contingency or otherwise was given to a stranger the estate was liable to the full duty, although a partial interest was given to the widow. But it expressed the opinion that there seemed to be no reason why the suggestion of the dissenting judge, Stephen J., in Wilsmore's case should not be acted upon, namely, that the value of the respective interests of widows and children and of strangers, whether contingent or vested, should, if capable of appreciation by approximate estimate or calculation, be ascertained in the usual way, and the duty levied accordingly. A general rule of uniform and not difficult application in agreement with the general policy of the act is presented by this suggestion so approved, and the rule may be applied to the facts of the present case consistently with the actual decision of the majority of the Court in Wilsmore's case, founded upon the facts of that case. If the value of the distribution shares of a widow and children upon intestacy and of the property and interests devised or bequeathed to the same persons by will be correctly calculated and charged by the master, it would seem that there could be little difficulty in making the proper deductions by the administrator or executor. The total amount of duty having been calculated and the value of the half rates of percentage allotted to the several distributive shares and interests respectively, it would only remain to make the prescribed reduction at the same rates from the respective shares and interests. The deduction would have to be made by an administrator upon intestacy as well as by an executor in all cases where others besides a widow and children become entitled to shares, If this were not done, the widow or children would be deprived in fact of the benefit which the Legislature intended for them. The insertion of the word administrator in the 11th section seems to point to this duty on the part of the administrator, although the latter words of the section are confined to interests coming to persons under a will. Declare that the testator died intestate as to the income of the property not specifically mentioned in the will until the death of the defendant Helen Terrill. "Duties on the Estates of Deceased Persons Statute 1870" declares that the duty under the Act No. 388 should be borne rateably between-(a), the annuity payable to the defendant Sophia White, the amount to be deducted from this annuity to be calculated at the same rate as is payable under section 24 upon property bequeathed to a widow; (b) the interest of the defendant Helen Terrill, in the house and ground at Box Hill in the household furniture, goods, chattels, and effects therein, the use of which is given to her for life, and also in the income payable to the said defendant during her life; (c) the reversionary interest of the infants in the whole estate of the testator, if the value of such interest can be approximately estimated; the amount For to be deducted from this interest to be calculated at the same rate as is payable under section 24 upon property bequeathed to children of a testator. (d) The income of the net proceeds of the property not specifically mentioned, the amount to be deducted from the share of the defendant, Sophia Whyte, to be calculated at the same rate as is payable under section 24 on the d'stributive share of a widow upon intestacy. the purpose of making the apportionment, refer to chambers to ascertain the values of the said annuity, and interests, and of the shares in income of Sophia White and George Frederick White respectively, and to fix the ratable amounts to be deducted, and let the said amounts be paid forthwith by the parties respectively entitled to the said to the said annuity, interests, and shares, in income or in default, be deducted by the plaintiff company from the first monies payable to the adult parties respectively, and as to the infants, be deducted from the estate pro rata out of the property specially mentioned in the will and the property not specifically mentioned. Order that the defendant, George Frederick White, be served within three months with notice of this judgment, and that within three months after service he be at liberty to apply to the Court to discharge, vary, or add to this judgment. Order that the costs of all parties up to and inclusive of this judgment, and incidental thereto, be taxed as between solicitor and client, and paid by the plaintiff company to the respective parties, or their solicitors, out of the estate pro rata, out of the property specifically mentioned in the will and the property not specifically mentioned. Reserve liberty to apply. Solicitors for plaintiff, Davies and Campbell; for the several defendants. Walter Davies, C. K. Jamieson, J. K. O. Smith. (Before Higinbotham C. J.) Oct. 25th, 26th, 27th, 29th, and Nov. 26th. WOOLSTENHOLM V. WOOLHOUSE. "Trade Marks Registration Act 1876" (No. 539) S 2-Trade Mark. Definition." Essential Particular"—combination of letters. 8th Dec., 1888. trade mark, so long as it conveys that meaning only, and has not become by use the distinctive mark of a particular manufacturer. (Semble). Registration of a trade mark of which only a part is actually used by the proprietor in marking the articles of his manufacture is unauthorized by the Act, and may be made a ground of defence in an action for its infringement. Action instituted by George Woolstenholm and Son Limited against William Woolhouse and Co. for an injunction to restrain the defendants from infringing a trade mark of which the plaintiff's claimed to be proprietors. [The facts appear from the judgment]. Hood (with him Isaacs) for the defendants-The letters "IXL" are not a trade mark. If they are a a trade mark, then, the words "I excell" are a trade mark. But a mere word in common use, indicating quality and nothing more, cannot be appropriated by one person to the exclusion of all others. Sebastian on Trade Marks (2nd Ed.) pp. 3, 21, 35. The combina ton of letters or words must be meaningless; in Towgood v. Pirie (56 L.T. 394) the word "Jubilee" was held not a trade mark. In the second place, if the plaintiff's sue for the infringement of a registered trade mark, there is no evidence to support their case. Only a portion of their trade mark has been actually used by them. When infringement of a registered trade mark is in question, the point is, not whether there has been infringement of the mark which the plaintiff has used in his business, but whether there has been infringement of the mark which he has actually registered-Sebastian, p. 155. [Re Spencer's Trade Mark (54 L.T. 659), Singer Manufacturing Co. v. Wilson (L.R. 2 Ch. D. 434 and H.L. 3 Ap. Ca. 376) referred to.] Hodges (Mitchell and Wynne with him) for the plaintiffs. The letters " IXL" have been used to designate this species of cutlery before the act came into operation; accordingly they constitute a trade mark-Sebastian p.p. 67, 69. Kinahan v. Bolton (15 Jr. Ch. Rep. 75), Edelsten v. Edelsten (1 De. G.J. & S., 185), Seixo v. Provezende (L.R. 1 Ch. 192). Cur, adv. vult. HIS HONOR, in giving judgment, said :-The plaintiffs sue the defendant, trading as William Woolhouse and Co., first, for an infringement of the plaintiff's trade mark by using a colourable imitation of it, claiming an injunction and account; and, secondly, for a fraudulent intention to injure the plaintiffs in ther business by the same means, claiming an injunction and damages. The plaintiffs were registered in Victoria on March 29, 1883, under the Trade marks To enable a plaintiff to maintain an action for an Registration Act, 1876, Act No. 539, as the proinfringement of a trade mark, he must be in aprietors of "the representation of a Maltese cross, position to show that the trade mark has been in- below which are the letters IXL" in respect of knives, fringed in an "Essential Particular.” razors, scissors, forks, and all kinds of cutlery. The plaintiffs carry on business at Sheffield, England. A predecessor in the business, George Woolstenholm, on October 3, 1831, obtained from the Cutlers Company, A combination of letters of which the sound conveys a descriptive meaning which might be expressed by words in common use cannot be appropriated as a in the exercise of its statutory powers, a grant of the same mark. This mark has been continuously owned by successive proprietors of the business from the time of the original grant down to the present time. It is admitted that the plaintiffs are by virtue of sundry assignments, registrations, and dealings, the lawful and registered proprietors of this mark in Great Britain and Ireland, and are entitled in Great Britain and Ireland to use the same. But it does not appear that this mark has been ever used by the plaintiff's or their predecessors either in Great Britain and Ireland or in Victoria in its original and registered form. For 20 years, at least, the Maltese cross has been omitted by the proprietors as a part of their trade-mark. The letters IXL, conveying the sound, "I excel," appears on all the plaintiffs' illuminated advertisement circulated by them in the Australian market. On most of the exhibits the plaintiffs' name as manufacturers, and their place of business, "Washington Works, Sheffield," appear in connection with the letters. The plaintiffs say that they consider the Maltese cross of no importance, that it is a redundancy and inconvenient in use. The letters alone without the cross are regarded as the essential and by far the most valuable part of the trade-mark. There is no evidence that the plaintiffs' cutlery marked with these three letters has been generally known in Melbourne indifferently as IXL, or XL cutlery, and is sometimes asked for by buyers as XL cutlery. For many years before 1879, the plaintiffs supplied knives and razors thus marked to the Australian markets through British houses. In that year they began to supply the Australian markets direct from their own factory. They exhibited cases of cutlery thus marked at the Melbourne Exhibition of 1880. On the other hand, many persons of experience in the business say that they have never known any cutlery known exclusively as XL cutlery. The Cutlers Company have granted to others besides George Woolstenholm marks consisting of the same, and additional letters, conveying to the ear a somewhat similar sound, and the same general meaning. Thus in 1853 one Parkin became proprietor by grant, first made by the Cutlers Company in 1879, of the mark XL ALL, "excel all.' Messrs. Parker and Marshall are now the proprietors of this mark. Joseph Bennett and Company have been the prietors for 27 years in the same way of the mark XLNT, "excellent." On December 7, 1838, the Cutlers Company granted a mark NONXLL, "None excel," to one Broadhurst. It is admitted that Joseph Allen, trading as Allen and Son, became on February 4, 1884, the lawfully registered proprietor of this last mentioned mark in Great Britain and Ireland. The predecessor of Allen, Broadhurst, sent out goods marked NONXLL to the Australian market as far back as the year 1849. All of the proprietors of all of these trade-marks granted by the Cutlers Company appear to have always recognised the right of one another to the use of the letter XL in Great Britain and Ireland. The special value of these letters as a catching description is known and admitted, but the years. right to the exclusive use of them appears to be now for the first time claimed by the plaintiff's under their registration in Victoria. Assuming that user in Great Britain could in any case be a foundation of a claim to registration in Victoria, I should say that none of these firms would be entitled to registration of these letters here as for an old trade-mark. "If the persons enjoying the trade-mark have been So numerous that it is impossible to say that any of them or all of them together had an exclusive right to it, then they shall not have the benefit of the registration, which would give an exclusive right."-Per Bacon, V.C., in Benbow v. Lowe, (44 L.J.N.S., 12.) The defendant is a dealer in cutlery, and has been carrying on business in Melbourne for 16 He has been receiving Allen and Sons cutlery for five or six years. He has known the plaintiffs' razors, and has kept them on sale for four or five years. The defendant, by agreement recently made with Allen and Son, has had the name of his firm-" W. Woolhouse and Co." engraved on the tang of Allen's razors sold by the defendant, together with the mark "NON XLL." This agreement, which is stated to be of a kind common in trade, was that Allen should put his NON XLL mark on the defendant's goods, so that the defendant should have to come to him for them; and in return the defendant was to have his name struck on the goods as an advertisement. Upon this agreement being made the defendant gave an order, about October, 1885, for £80 worth of razors, which he advertised as NON XLL razors, and he afterwards, and without Allen's knowledge or authority, tried unsuccessfully to register in Victoria Allen's mark as his own. He also printed and circulated the greater part of 100,000 copies of a circular in which occur the words, "Ask for Woolhouse's NON XL razors." These are the colourable imitations of the plaintiff's goods of which the plaintiff's complain. The plaintiffs rest their first claim in this action, namely, for infringement upon rights they allege they have acquired under the Victorian act by registration. In order to maintain this claim they must show that they are the registered proprietors of a trade mark as defined by the act; and they must further show that the defendant has infringed by a colourable imitation that trademark proso defined. I think that the plaintiff's have failed to do this. The second section of the act contains two definitions of a statutory trade-mark. The first is general, and applies to some old and to all new trade-marks. According to this definition a trade-mark consists of one or more of three essential particulars, viz., a name of a person or firm, a written signature or copy, or a distinctive device mark, &c., to which may be added "any letters, words, or figures, or combination of letters, words, or figures." In trade-marks coming within this definition the essential particular or particulars constitute the trademark, the added letters, words, or figures or combination thereof, are no part of the trade-mark. It is not denied that the plaintiffs' registered mark would be as to its essential particular a good trade |