UHLMANN ", AQNHOLT
UHLMANN etal. '11. ARNHOLT &; SCHAEFFER BREWING CO. SAMliI V. BETZ et al, SAME v. GERMANIA BREWING CO.l
(OiT/mit Oourt, .E. D. Pennsylvania. January 29, 1890.) 1.
The criterion of immateriality.of interrogatories in a bill in equity is not an aftlrmative answer will prove the bill, but whether it will tend to prove the bill.
BAME-ANSWERS-WAIVER OF OATH-EvIDENCE.
A defendant, in a bill for discovery and relief, whose oath has been waived, is not thereby excused from answering, and the only effect of dispensing with. the oath Is to deprive him of the benefit of his own declarations. Admissions contained in such answers are evidence al\'ainst him.
In Equity. Sur exceptions to answers. Bills in equity by Simon Uhlmann and Frederick Uhlmann against the Germania Brewing Company, the Arnholt & Schaeffer Brewing Company, John F .· Betz, and J9hn F. Betz, Jr., for discovery and relief. The complainants dispensed with the requirement of an oath to respondents' answers. .Respondents re1used to answer, alleging the immateriality of the interrogatories, .and the fact that complainant dispensed with the oath to the answer. Complainants excepted. Wetmore &- Je'll,ner, for compluinants. Witter &- Kenyon, for respondents. BUTLEl't, J. The respondents have ignored the interrogatories propounded, and put their .suppos'ed right to do so on the ground-Jilirst, that the interrogatories are immaterial; and, seccmd, that the waiver of an oath dispenses with an answer. As respects the first proposition,we disagree with the respondents. The criterion of immateriality is not whether affirmative answers will prove the bill, but whether thllY will tend to prove it. That they will so tend we cannot doubt. This applies to each of the interrogatories. Nothing further need be said on this subject. The second position-that the waiver of an oath dispenses with an answer-is, we believe, equally untenable. Whether the oath is dispensed with by law, as in the case of corporations, or by the complain,.. ant, is immaterial. The two classes of answers belong to the same category in this respect, and no distinction nee£). be Ulade in considering the point raised. The real question is, can respondents in such cases be required make discovery? The proposition that they cannot, rests upon an allegation that the answers will not be evidence. This allegation is, clearly, unfounded, and the proposition faIls with it. The answers. will purpose. be evidence, if the complainants choose to use them for Any admissions contained therein will be available. to support the hilI. The only eEect of dispensing with the oath is to deprivll respondents .of the benefit of their own declarations. They are not relieved from making discovery. The citations appealed to (U. S. v. Mcl-aughlin, 24 Fed.
'Reported by C. Berkeley Taylor, Esq., of the Philadelphia bar.
Rep. 823; Bartlett v. Gale, 4 Paige, 504j McCormick v. Chamberlin, 11 Paige,'1>45jand 1 Barb.,'Ch. 'Pr;l'17),'cannot. be regarded as authority fot.the proposition. What is said in U. S. v. McLaughlin is a dictum merely. No such questionwas i,I,lVqlved. The respondents' oath was not waived. No interrogatories "'lhitever were propounded, or answers required, and the decision was puto.nthis ground alone. The cQu,rt , is in the bill no demandfdr':ananswer, general, or specific, .upon hiob that exception [to the insqflldency1 can rest. The. of is evidently for .." It hllSpeen held that no exception will lie, except· where an interrogatory, either special or general, calls for an answer to the bill. and "in our present practice', under the provisions of equityiult's 41-43, which petmitacbm* *. * I apprehend -that g, iritertogatoPy,wouldi>e' ,But, that ·may' ih,Do·sense a' bill of discovery, eXcepting 'SO far as all billsinwhioh an oatti has not been waived .Iil9!y k., . be regarded as bills' of' disc()vel'y. It confuinsn? gen!ePaI iI1terroglioory,and oospecificinteitdgatiory pointing to the matter set forth in the exceptien, and mahifustly was not 'sbill of discovery, but as purely a bill for relief:' oath is not waived, yet no demand in the :fiatureof'thos6'whicn distinguish a bill of discovery. is made. * * * It is manifestly intended simply ·as Ii bill' ;for l;elief, the cOmplainants not ,seeking but intend'upon the testimbny Of to prove their 'case." ing " wu;repeat. this case ,is 1 authf)l'ity· Tor the respondents' position. The dictum cited is founded, as the rep&rt shows, on a foot-l1oteoo 2 Dan.. .jel, 'P'r';18'79. This Mte 'cby,·the, 'American :editor)placestinsworn .an'swtll'8:bycorporaUobll, and other detehdailtswhoseoathsare expreSsly waived;rm·, the categOO1 of thosebf infants and the attorney general; andcit,es'Z·Halst. Dig.iN.' J. 173;,1 B!it'b. Ch. Pro 1176; and Ba:rl1ettv. Gale, 4 Paige. 504,-as authority fOlthis. < The citations, however. do notwli'tmrrtthe note. The statement in Halstead rests on a supposed 'decision' by OhancellorWILLIAMSON, of New Jersey, in Wallace v. Wallace; 'anunreported. case. " The supposition may he correct;· but this is. quite -uncertain.' . Ifcorreet. however, thecilse cannot 6fwhatis subsequently said of it by the same court in Reed: v.ln8Ura'11.ce OO)j '86 'N.J. Eq. 393. It is there doubted l\:hether ,Wallade". Wallace. wits :correctly und13rst06d, and the question decided theother'way.Abundant l'eaSoI1 is given for this decision. The text of 2 Daniel, to whi<ih the note is appended, that answers by irifantSand ·the attorney general dre not liable to' exception, is accurate; but thia does ·not tend:to supportair:inference tha:tthe same is true of uI1swom an'swets by others., >Ibfanf1ntre wa:rdsof llharicery,in England,'alld the atThey are therefore exempt from. not' answerat'all.; 'The'statement in1' Barb. Ch'. Pro 176, is also founded on the supposed decision in Wallace v. Wall<l,t:e, and a special ruleof'thirNew¥or'kbhancery... Biirt/4tv. I·,.? , .
FIELD. II. DREW THEOLOGICAL SE.MINARY.
nothing to the subject. McCormick v. Chamberlin, 11 Paige, 545, cited· by respondents, turned on the specific rule of the New York court of chancery, which is, of course, inapplicable here. In Colgate v. Compagnie Francaise, 23 Fed. Rep. 82, the question before us was directly involved, was very fully considered, and decided by J udge WALLACE against the respondents, a corporation. . What is there said applies as fully where an oath is dispensed with by the complainant. The excep. tions are sustained, and an order will be accordingly.
t7. DREW THEOLOGICAL SEMINARY.
(Oircuit Oourt, D. Del.a1Dare. February 10, 1890.)
ClURITIES-CHARITABLB BEQUESTS-CONDITION SUBSEQUENT.
A condition, in a bequest for educating two young men for the ministry. that they shall, after entering it. pursue a certain-course, that was not optional with the minister. but subject to the control of the blBhop, is a condition subsequent, and does not a1fect the validity ()f the gift. A charitable bequest to a corporation not in existence at testator's deathl but to be thereafter created by act of legislature in acoordance with his will, lB vwid. A bequ4;l8t providing for the creation of a fund for the education of "two young men, for all coming time, " for the Christian ministry,. is a valid charitable use.
SAXB-Bll:QUEST TO CORPORATION TO BE THEREAr'l'ER CREATED.
4. SAXB-lNDE;J;INITENEY. . .
A bequest, in trust, ofa "sum of money sumcient to carrY out intention" "to proVide for the education of two young men, ** * where tlie trustees have accepted the trust, and young men have been appointed, and the expense of keepiJ;Jg them approximately known, is not void for indefiniteness. .
b1/ the OouTt.)
Bill in..equity by William M. Field and Hannah Riddle, surviving executors of the last will of James Riddle, deceased, against the Drew Theological Seminary of the Methodist Episcopal Church. Bates&: IJarrington, for complainants. Hoffecker & Hoffecker and 1'almage W. Fbater, for respondents.
WALES, J. This suit is an amicable one, on bill, answer, and admitted facts·. The complainants, after stating that they have been advised that some doubt exists as to the validity of a certain bequest contaSned in the will of their testator, and making the same a part of their bill, apply to the court for directions touching their duty in the premises, that they may be directed in what manner to proceed in order faithfully to execute the provisions of the ,will, and that the true construction thereof may be declared. . ... . 'Riddle, the testator, died August 21, 1873j and his will was dulyprobatep, on the 20th day of October, in thl) same year. The bein question is in these words: ,"14em,TtDefltll-First. I direct that my Eixecutors .8hallprovide. out of the money for the rents Of, my real estate, and i.lut9f.the profits oftbe