point was involved, by reason of language in a subsequent opinion, which, however forcible and weighty, must nevertheless be regarded as obiter dictum in the case in which it was used.

Coming now to the application of the principles relating to partnership real estate in Kentucky to the facts of this case, we must first consider the contention of counsel for appellees that there were partnership debts and obligations which conferred upon the surviving partner an equitable title and trust to sell the property to the distillery companies. There was a mortgage of $2,700 on one of the distillery tracts and of $7,000 on the other at the time of the death of T. J. Megibben, but it does not appear that there was not enough personal property to pay these debts. The firm was under contract to make whisky and feed cattle, and liable in damages for nonperformance. Such a condition of the affairs of the firm would doubtless authorize a continuance of the business by the surviving partner for the purpose of discharging those obligations at the joint risk of the living partner and the estate of the deceased partner. See 2 Bates, Partn. § 730. It might also, if by the sale of the property those obligations could be discharged, confer the right on the surviving partner to sell the whole partnership stock, including the real estate; but such a sale, as against minor heirs having a beneficial interest in the same, must be a sale for cash. No authority has been cited which justifies the claim that a surviving partner may exchange the partnership stock and real estate for shares in a corporation, even though the shares represent an interest in the real estate originally held. The control and management of the property under a corporation and under partnership ownership are quite different. This socalled "sale for stock" is in fact an exchange of one kind of property for another, and there is no rule of law or precedent conferring such power on the surviving partner. The difficulty arising from the internal revenue laws could not be obviated in that way. It might, perhaps, have justified a sale for a money consideration.

It remains to consider the last and chief contention of appellees, that in equity the undivided interest of the deceased partner in this real estate was personal assets descending to the personal representatives. If so, then, by deed of the administrators, who were the complainants below, the full equitable title to this undivided interest might have been conveyed to the purchasers here. It is true there is no such deed shown in the record from the administrators to the distillery companies, but such omission could be easily supplied by making the execution of such a deed the condition of a decree for specific performance, and we may consider the case on the theory that such a deed has in fact been executed. There is no doubt, we presume, of the general power of the administrators, under the law of Kentucky, to reduce to money an undivided equitable interest in real estate held by them as personalty, provided such sale is not fraudulent, or grossly inadequate. Cook v. Burton's Adm'r, 5 Bush, 66; Anderson v. Irvine, 6 B. Mon. 233; Ward v. Lewis, 3 J. J. Marsh. 505; Haddix v. Haddix, 5 Litt. 201.

We have still to consider, therefore, whether the circumstances in the case at bar are such, with reference to the two distillery tracts, that,

in accordance with the Kentucky law of partnership, above stated, an agreement can be clearly implied between the partners to treat the two distillery tracts as personalty out and out. With reference to the Sharpe distillery tract, there will be little difficulty in implying such an agreement. That tract was bought with partnership funds for the purpose of being used in the partnership business. The business was a manufacturing and trading business. The evidence would seem to show that the naked real estate, in point of value, was an insignificant part of the firm capital invested in the business. Nineteen twentieths of the partnership capital was in the plant, improvements, and good will of the distillery. The value of a distillery is largely dependent on the circumstance that the brand of whisky which is manufactured there is kept on the market. It would seem to be a reasonable inference from these facts and others in connection with the business that the real estate, the plant, the improvements, and the personal property, together with the good will, the brands, secret processes, etc., all went to make up an entire thing, which, if separated into its parts, would diminish in value, and lose its usefulness as a money-making investment. It would be to the interests of the partners, therefore, to have the real estate treated as a part of the personalty on the dissolution of the firm, in order to secure a prompt and profitable disposition of the firm assets, and the presumption may well be indulged that such was their intention and tacit agreement.

In reaching a similar conclusion in respect to the Megibben distillery tract, however, we encounter a serious obstacle. The land upon which the distillery stands was not purchased with partnership funds, and by all the Kentucky cases this is indispensable to a conversion of real estate held by partners into partnership personalty "out and out." The distillery lot was, as we have before said, part of a 227-acre tract bought by T. J. Megibben a year before the partnership was formed. Some five years after, he and his wife conveyed an undivided one third of the lot to his partner, J. K. Megibben. The remaining undivided two thirds, T. J. Megibben held just as he held the rest of the 227 acres. Even if it be conceded that the recital in the deed to J. K. Megibben shows that the transaction was in reality intended between the partners to be a transfer of the land from T. J. Megibben as an individual to himself and his partner as a firm, each partner contributing his pro rata share of the consideration, still we cannot infer any intention on the part of T. J. Megibben to treat the real estate as personalty for the purposes of distribution on his death. The dower right of his wife in the undivided two thirds of the tract was exactly the same as it had been before the partnership was formed, and by no principle of law or equity could she be deprived of her beneficial interest in it. The equitable doctrine of the "out and out" conversion of partnership real estate into personalty, under which the widow is deprived of benefit from her dower estate in the land, is worked out on the theory that, the land having been acquired with partnership funds, there is imposed on those on whom the legal title is cast, a trust to execute the purposes for which the partners bought it; and, if one of these purposes was an "out and out" conversion into personalty, this excludes any beneficial dower

interest. But here, where the fee vested in the husband before there was a partnership, there is no ground for imposing such a trust on the widow, and no room, therefore, for the application of the doctrine. To deprive her, either in law or in equity, of all beneficial dower interest in the Megibben distillery tract, she must have released it to the firm. In the absence of such a release, we cannot infer an intention on her husband's part that this land should be treated as personalty for distribution by his administrator. It is true that the widow has now deeded her interest in the land to the distillery company. That, however, does not change the fact that on her husband's death she had a beneficial interest in it as his widow, and that he intended she should have. If so, it follows that his children had a beneficial interest in it as heirs, for it would be absurd to say that the deceased partner intended the land to be real estate as to the widow and personalty as to the heirs.

For these reasons we cannot hold that the Megibben distillery tract passed as personalty to the administrators of T. J. Megibben for distribution. The result is that the legal and equitable title to an undivided interest in the Megibben distillery tract is outstanding in the minor heirs, unless it has been transferred to the Megibben Distillery Company by the Harrison chancery proceedings. With reference to the Sharpe distillery tract, the naked legal title to an undivided interest in that tract is outstanding in the minor heirs, unless it has been transferred to the Sharpe Distillery Company by the same chancery proceedings.

It only remains to examine and determine the validity and effect of the proceedings in the Harrison chancery court.

First, as to the Megibben distillery tract. It is established by the cases of Barrett v. Churchill, 18 B. Mon. 387; Henning v. Harrison, 13 Bush, 723; Walker v. Smyser's Ex'rs, 80 Ky. 620,-"as the settled rule of Kentucky, that the powers of the courts of equity simply to sell and reinvest infants' real estate are statutory, and not inherent." The case of Thompson v. Pettibone, 79 Ky. 319, relied upon by appellants, has no application here, because it involved an exchange of one form of personal property for another, and was really justified under the statutes authorizing the guardian to compound the claim of his ward with the permission of a court of equity. It follows that, unless the power of the Harrison chancery court to exchange the beneficial interest of the minor heirs in real estate for shares of stock in a corporation can be found in the statutes of the state, the action of the chancellor and the whole proceeding are void. It is not a question of irregularity, but, the power given being statutory and specific, limitations of its exercise must be strictly followed, or the proceeding is a nullity. This conclusion is abundantly sustained by many decisions of the court of appeals. See Carpenter v. Strother's Heirs, 16 B. Mon. 289; Barrett v. Churchill, 18 B. Mon. 387; Woodcock v. Bowman, 4 Metc. (Ky.) 40; Barnett v. Bull, 81 Ky. 127.

There is no authority conferred upon a court of equity by the stat utes of Kentucky, under which the beneficial interest of infants in real estate may be exchanged for shares of stock. Section 489 of the Civil Code of Kentucky (Carroll's Code Ky. 1888, p. 235) provides

that infants' real estate may be sold by a court of equity (1) to pay debts of an ancestor; (2) to pay his own debts; (3) in an action by the guardian for the ward's maintenance and education; (5) in an action against the infant by his guardian for the sale of real estate and investment in other property. The proceedings in this case are said to be for reinvestment, and the authority therefor must be found, if at all, in the fifth paragraph of section 489. But, if so, the decree of the court is void for two reasons:

First, because section 493 requires that before a sale shall take place in accordance with article 5, § 489, the guardian shall execute a bond to the infant, with at least two sureties, worth not less than double the value of the estate to be sold; and, unless such bond be given, any order of sale and any conveyance made under such order shall be absolutely void. No bond was given here.

And, second, because section 19, art. 2, c. 48, of the General Statutes of Kentucky, (Bullitt & Feland,) as amended March, 1884, limits the investments which courts of equity may authorize guardians to make of the money of their wards to real estate or stocks or interestbearing bonds of the United States, state of Kentucky, or some county or town of the commonwealth. Of course, no reinvestment can be made except in these named securities.

Another contention of the appellees, and one which met with favor in the court below, was that these proceedings could be sustained under section 490 of the Kentucky Civil Code. That section (Carroll's Code Ky. p. 236) provides that a vested estate in real property jointly owned by two or more persons may be sold by order of a court of equity in an action brought by either of them, though the plaintiff or defendant be of unsound mind or an infant, (1) if the share of each owner be worth less than $100; (2) if the estate be in possession, and the property cannot be divided without materially impairing its value, or the value of the plaintiff's interest therein. Section 497, p. 240, provides that

"In the action mentioned in subsection 2 of section 490 the share of an infant or of a person of unsound mind shall not be paid by the purchaser, but shall remain a lien on the land, bearing interest, until the infant come of age, or the person of unsound mind come of sound mind, or until the guardian of the infant or the committee of the person of unsound mind execute bond as is required by section 493.”

It is clear that section 490 does not authorize a sale for anything but a money price. It is true, no bond is required, but that is because the infant's interest is, under section 497, to remain a lien on the land until a bond is given. The provision that the share of the infant shall remain a lien on the land, bearing interest, excludes entirely the idea that anything but a sale for money is authorized by section 490. We should reach this conclusion on the words of section 490 alone, for a statutory authority to sell means a sale for money, either cash or on credit, and not a barter or exchange. More than that, section 19, art. 2, c. 48, of the General Statutes of Kentucky, already referred to, limiting the character of investments for infants, would prevent such an exchange.

For the reasons given, the Harrison chancery court proceedings, v.53F.no.1-7

as to the Megibben Excelsior Distillery tract, must be held to be void. Even if they were valid, the shares of stock, by the force of the decree, would belong to the minor heirs, and there would be no power in the administrators to contract to sell their shares of stock, and there would be no right of action in the administrators, as complainants, to enforce such a contract.

Nor do we think that the proceedings as to the Sharpe tract may be taken as an application of the personal representatives of T. J. Megibben to a court of equity to require the minor heirs to part with their naked legal title in order to bring about a reduction of the assets to money. The administrators, who alone could bring such a proceeding, were not parties to the petition in the Harrison chancery court. The petition was based on the theory that the heirs of T. J. Megibben had a beneficial interest, as heirs, in the partnership real estate, and that the court, as a chancery court, had power to order a sale of that interest for shares of stock in the company. The answer admits such to be the case, and the decree expressly finds the interest, and confirms the exchange for shares of stock in the new company as a beneficial investment. It is difficult to see how such a proceeding can be made to serve the purpose of an action to compel the transfer of the naked legal title on the ground that there was no beneficial interest, especially when, as an attempt to sell the beneficial interest of infants in real estate, the proceeding is a nullity. With the defects in the title to the two distillery tracts, we cannot force the property upon an unwilling purchaser. The decree of the court below must be reversed, with instructions to dismiss the bill.

BLOUNT v. SOCIETE ANONYME DU FILTRE CHAMBERLAND SYSTEME PASTEUR et al.

(Circuit Court of Appeals. Sixth Circuit. November 1, 1892.)

No. 57.

1. PATENTS FOR INVENTIONS-APPEAL FROM ORDER FOR PRELIMINARY INJUNCTION-REVIEW.

On an appeal to the circuit court of appeals under section 7 of the act of March 3, 1891, from an order granting an injunction pendente lite against the infringement of a patent, the only question for review is whether the injunction was erroneously or improvidently granted in the legal discretion of the trial court, and the questions of the validity of the patent and infringement can be considered only incidentally, as bearing upon this matter. 2. SAME-PRELIMINARY INJUNCTION-PRESUMPTION OF VALIDITY OF PATENT. On an application for a preliminary injunction to restrain infringement of letters patent No. 336,385, granted February 16, 1886, to Charles E. Chamberland for certain new and useful improvements in filtering compounds, it appeared that complainant had an undoubted title to the patent as assignee and licensee; that it made and sold the article for several years without any attempt by others to make or sell the same; that the invention had been used from the date of the patent until 1892, only under license of the patentee; and that an interlocutory injunction had been granted in another circuit in a suit between the same parties. Held, that these circumstances created so strong a presumption of the validity of the patent as to authorize the issuance of a preliminary injunction, in the absence of clear proof of invalidity.