Appeal from the District Court, Twelfth Judicial District,

City and County of San Francisco.

John H. Cutter, a resident of Hew Hampshire, was, and had been for many years, the owner of ,a trade-mark used to designate a certain brand of Bourbon Whisky, which was sold by him throughout the United States. On the 29th day of October, 1859, he made a will, in which he nominated executors, and also appointed three trustees. After several special devises, he made the following general devige:

“All the rest, residue and remainder of my estate, personal, real and mixed, I give, devise and bequeath in manner following, to wit: two nineteenths thereof to my son, William P. Cutter, his heirs and assigns forever; fifteen nineteenths thereof to my five daughters, each an equal proportion, and to their heirs and assigns forever; and the other two nineteenths thereof to my' said trustees, in trust, to be held, invested and managed for the benefit of my son, John P. Cutter, in such manner .as they shall judge to be most for the interest of my said son, until he shall arrive at the age of thirty years, and to pay over to him or expend for him the income, or such part thereof as said trustees shall deem necessary or suitable until he shall arrive at the age of thirty years; and then I desire and direct my said trustees to pay over and transfer to him the said two nineteenths, and the increase, if any thereof, if in their judgment and belief the said John shall be in a condition, and possess such habits of .industry, prudence and economy, as to render it suitable, proper and expedient that he shall have the control and management of his own property, to hold to said John, his heirs and assigns; but if my said trustees should be of a different opinion and belief, I hereby order and direct them to retain the said share of the said John, still in trust for him, and the same to invest and husband, and of the income, principal and estate to pay to him and transfer to him, in part or wholly, as they shall judge to be for the best interest of my said, son, in accordance with justice and prudence, and considering his habits, capacity and prospects in life. The foregoing portion, put in trust for my said son, John F., is for him, his heirs and assigns, subject to the trust; and at his decease, if still in the hands of the trustees, to be paid and transferred to his heirs and legal assigns.

“I empower the survivor or survivors of my said trustees, to act in all the matters of trust herein contained, if any one or more of them shall decease.

“In testimony whereof, I hereunto set my hand and seal, and publish and declare this to be my last will and testament, in the presence of the witnesses named below, this 29th day of October, in the year of our Lord, 1859.

“ JOHN H. GUTTER, [seal.] ”

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