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About Morning Oregonian. (Portland, Or.) 1861-1937 | View Entire Issue (July 27, 1921)
TTTE 3IOHXIXG OREGONIAN, WEDNESDAY, JULY 27, 1921 PITTOCK WILL IS HELD TO BE VALID Supreme Court Supports Pub lisher's Testament. DECISION BY FULL BENCH All Allegations of the Contestant, Airs. Leatfbetter, Are Overruled. Every Point Is Covered. (Continued Prom FMret Pa gc.) and the will in that respect is a valid document declaratory of his -disposition of his estate. Circuit Court Jurisdiction Upheld. "Summing up, we hold that there was no error in striking out of the original petition the conclusions of law stated for the contention that the will was void. The petitioner has had the benefit or a full argument and examination of his questions so raised. "The circuit court before which this proceeding was instituted had ample jurisdiction of the suit, whether it be one merely to set aside the will as void for undue influence, or whether the issue was the construction of the will with a view of having it declared void. In the absence of an allegation of an illegal contract void as against public policy the will cannot be at tacked upon that ground. "Further, no agreement of stock holders proceeding from any private mercenary consideration of benefit to themselves, in which other members of the corporation could not share, has been shown. The testator in dis posing of his own property had a right to direct his trustees to vote and act as he himself could have done while living. Even conceding that there was a contract, there is nothing to show that it was hostile to the in terest of any stockholder or disquali fying in its effect upon the trustees who have succeeded to the interests of the testator. Finally, the trust established by the will Is sufficiently certain in all of its features for prac tical operation." The suit to break the Pittock will originally was filed in the circuit court for Multnomah county, with the result that after an extended hear ing Judge Taiwall upheld the valid ity of the document. Mrs. Leadbetter, through her attorneys, later appealed the case to the supreme court for final determination, v O. L. Price, as executor, and O. L. Price and C. A. Morden, as trustees under the last will and testament of Mr. Pittock, were named as defendants. The opinion of the court In full is as follows: FULL TEXT OF THE DECISION S up retire Court la Unanimous In Its Conclusions. This Is a proceeding to contest the anally ui me will lil ncm y aj. Pittock, deceased, on the petition of his daughter. Caroline P. Leadbetter. in which the relief desired is t'o set aside, annul and cancel the testa mentary document, with a view of dis tributing the estate according to the statute of descents, as in a case of intestacy. The original petition stated the death of the 'deceased, that at the time thereof he was a resident and Inhabitant of Multnomah county, Ore gon, having real and personal prop erty therein, gives the names and residences of the heirs and avers that about February 17, 1919, a writing purporting to be ilia will was admitted to probate. The petition then goes on to allege that the will mentioned "should be set aside and annulled for the following reasons." among others these: (c) That said paper writing is void as a last will and testament. because the trustees therein named are vested with unrestricted and unlimited discretion aa to whether they shall accumulate the income arising from the estate of said testator and keep intact the cor pus thereof during the period of the trust purported to be created by said paper writing, or. whether they shall sell the assets of said estate and make distribution thereof and of the income arising therefrom within the period of said allered trust. (d) That said paper writing Is oid as a last will and testament, because it does not specify, with sufficient certainty, the benefi ciaries of the trust therein pur ported to be created. (e) That said paper writing Is oid as a last will and testament because It is In contravention of -the statutes of the state of Ore gon and asrainst public policy, particularly in that clause B of paragraph second thereof directs raid trustees to vote the stock of Tho Oregonian Publishing com pany, owned by said decedent at the time of his death, in favor of themselves aa directors of said company for the period of tlie trust purported to be created by said paper writing to-wit: twenty years. The circuit court, in which thin pro ceeding was Instituted, on motion of the proponents ol the will, struck out paragraphs c. d and e. above quoted, whereupon the contestant filed an amended petition. The allegations about the death of the decedent, the nerrs ana tne presentation and ndtnis sion to probate of the will are sub stantially the same as in th npipinal pleading. It goes on to state with a wealth of verbiage that the trustees were intimately connected with the cieceasea as confidential adv srrs. that at the time of the execution of the will the decedent was eighty-one years of age: that the trustees named therein had acquired great influence over him: and that, conspiring, intending and uBvisinn m secure iari?e power, lnfiu ence. emoluments, salaries and com missions a executors of the last will and testament and as trustees of his estate amounting approximately to $8,000,000. the individuals named as trustees so persuaded and overcame the will, free agency, volition and judgment of the deceased that their will was substituted for his and the tiauer mentioned, for the reasons fore going, was not and did not represent tne win or tne decedent. It is averred also in substance that the trustees and others to the peti tioner unknown unduly influenced and induced the deceased to keep secret the fact that he had siarneii the paper. The resultant of all the allegations of the amended petition is concentrated in the eleventh paragraph thereot, reading thus: That said provisions of said will creating said trust and conveying to said O. L. Price and C. A. Morden all of the estate of dece dent and gtviner to said persons unrestricted and unlimited dis cretion as to the accumulation of the income arisina from the estate of decrasei and keeping in tact the corpus thereof during the period of twenty years aa provided in said paper writing, or selling the assets of said estate and mak ine distribution thereof and the income arising therefrom within said period of twenty (20) years, and failing to specify with suffi cient certainty the beneficiaries of said trust attempted to be cre ated by said paper writing, and directing the said persons to vole for themselves durino- the period of said alleged trust and to elect and retain said C. A. Morden as manager of The Oregonian Pub lishing company are illegal and void, against public polio- and in contravention of the statutes of the state of Oregon. - It is alleged that tne decedent was Ignorant or tne legal ertect or the provisions of the will and that he relied upon the representations of the trustees and did not seek independent about tne death, relationship of the! 28 Colo. 167, 63 Pac. 413. 89 Am. St. 181. advice; that tie would not have exe- heirs and the admission of the will 63 L. R. A. 387; Ginter vs. Ginter, 70 cuted the will or created the trust ' to probate, but otherwise denies the I Kan. 721. 101 Pac. 631. 22 L. R. A. mentioned if, he had known or been ' petition in toto. As new matter the n. s. 1024. advised that the writing in the car- ', answer avers the death of the de-: The principal point of attack on the ticulars mentioned, or in any of them, cedent, his residence in Multnomah will Is what we may call for conven was illeeal and void. The prayer is county, Oregon, .at the ' time of his ience the "Oreeronian clause." reading to the effect that the will be set aside I death; that he made a will of date thus: ana canceled and an administrator dc f . ..-.. . v. Aat A copy of the will is attached to the ! petition, marked ".Exhibit A. ana reads as follows: I Know all men, that I, HenryU . Pittock, of Portland. Multnomah county, state of Oregon, of the age of 81 years, being of sound and disposing mind and memory, and not acting under duress, menace, fraud or undue influence o tny person whomsoever, do make, publish and declare this my last will and testament in man ner and form following, to-wit: First It is my will, and 1 do order that all my just debts and funeral expenses be duly paid and satisfied as soon as can conven iently be done after my decease. . Second In order to avoid, as far as possible, any loss or de preciation which might be caused by any 'sudden changes and to preserve my e-state, I hereby give, devise and bequeath unto C. A. Morden and O. L. Price, both of Portland, Or., all of my property, real, personal and mixed, of which I may die seized or to which I may be entitled, including prop erty held in trust for me and after acquired property, whereso ever the same may be located to be held by them in trnst for a pe riod of twenty (20) years from the date of my decease for the fol lowing purposes, to-wit: A. The trustees shall have full and complete power and authority over my estate, they shall have -full and complete possession and control of same, they shall keep the surplus funds invested In good securities. I grant unto them full power and authority to sell at public or private sale, as they may see fit, any of my property, except as herein otherwise pro vided, upon such terms and condi tions as to them shall seem meet and for any purpose whatever; and I exonerate any purchaser from the necessity of seeing to the due application of the pro ceeds of sale, in making such sale said trustees shall not be obliged either to obtain the authority or consent or confirmation - of any court therefor or thereof, either before or afterwards or to make any report thereof. They shall have power and authority to bor row money and bind my estate for the repayment thereof and to loan or advance money from my estate either with or without security when they shall deem it necessary for the protection of my estate. They shall have power to vote my stock in the various corporations at all meetings of the stockhold ers of such corporations and shall have all powers incident to the ownership of such stock. B. None of my stock in The Oregonian Publishing company shall be sold, but shall be held . intact during the entire period of this trust. I direct that my trus tees shall vote said stock in favor of themselves as directors of said corporation, and it is my desire and I request that C. A. Morden shall be elected manager of The Oregonian and shall be retained as such, and that Edgar B. Piper shall be retained as managing editor of The Oregonian until he shall beoome incapacitated or un til he may voluntarily resign. C. None of my stock in the Crown-Willamette Paper company shall be sold, but shall-be held in tact during the entire period of this trust. D. None of my stock in the Northwestern National bank of Portland, OT., shall be sold unless all of my stock in the Northwest ern Fidelity company shall also be sold at the same time, or unless all of my stock in the Northwest ern. Fidelity company shall have been previously sold. K. My trustees shall pay to my wife, Georgiana M. Pittock, If she shall survive me, the sum of $1000 monthly during her lifetime or until the termination of this trust. They shall also pay the sura of 8500 monthly to each of my five children, namely: Susan Emery, Fred F. Pittock. Kate P. , Hebard. Caroline P. Leadbetter and Louise Gantenbein, during their lifetime or until the termi nation of this trust; provided, that if any of my said children should not survive me or should die before the expiration of this trust, such amount as would oth erwise have gone to such de ceased child shall be paid to the then living heirs of the body of such deceased child by right of representation, and in the event such deceased child shall leave no living heirs of his or her body then the payment which would otherwise nave gone to such de ceased child shall cease upon the death of such child. F. When all of my debts and obligations shall have been paid or when a' sufficient amount of cash shall be on hand to pay the same, I direct my trustees to pay semi-annually thereafter fifty (30) per cent of all cash on hand in excess of such reserve and in excess of such amount otherwise needed to preserve my estate, -to my said wife. If living, and if she shall not then be living said amount shall be paid semi-annually, share and share alike to my five children during their lifetime or until the termination of this trust, provided that if any of my said children shall not then be living the payment which would otherwise go to such de ceased child shall go to the then living heirs of the body of each deceased child by right of repre sentation and in the event that such deceased child shall leave no living heirs of his or her body, such payment shall cease. It must be understood that when I refer to "my debta and obliga tions" I mean not only my direct obligations, but all mortgages either upon my own property or upon property in which I am jointly interested and.all obliga tions of the Northwestern Fidel ity company so long as my stock in said company remains unsold. O. Upon the termination of this trust, to-wit: Twenty (20) years after the date of my decease, all the property remaining in the hands .of my trustees shall be turned over to my said wife, if . living, to be held by her during her lifetime, and upon her death, to go to my children as herein after provided for in case my said wife shall not be living at the termination of this trust; and In the event my said wife shall not be living at the termination of this trust all the property re maining in the hands of my trus tees shall be turned over to and become the property of my then surviving children, share and share alike, providing that if anv of my five children shall not then be living but shall leave living heirs of his or her body, the pro portion of said property which would otherwise have gone to such deceased child shall go to the then living heirs of the bodv of such deceased child by right of reoresentation. H. If either of my trustees above named shall die, resign or become incapacitated either be fore or after my decease, the sur vivor or remaining trustee shall act alone, and in the event both of said trustees should die. re sign or become incapacitated. I hereby appoint the Portland Trust company of Oregon to fill such vacancy and to act alone. It is understood that wherever and -whenever In this will I have re ferred to "trustees" it-shall mean the trustees herein named, the survivor or successor. Lastly. I nominate, constitute and appoint my wife. Georgiana M. Pittock. to be the executrix and O. L. Price to be the executor of this, my last will and testa ment, to act jointly and without bonds; in the event of the death or resignation of either of the above then the survivor shall act alone. I hereby revoke all other legacies and wills by me made and declare this and no other to be my last will and testament. I direct that no bond shall be re quired of the trustees herein namea or oi tne survivor or suc cessor. In witness whereof I have here unto set my hand and seal this 23d dav of August. A. T. 1916. HENRY L. PITTOCK (Seal.) The attestation by the witnesses is in the usual form and is consequently omitted. The answer admits the allegations ism; mat ne siicnea me i (namo It, tho th-ct,. rt -wr named witnesses, who then and there at his ; request ana in nis presence signea the same as witnesses, and he pub- 'i" t 'tl make the will; that his wife and O. L. Price were named as executors, but that the wife had died prior to the testator's death; and that the will was aomittea to pronate. ana letters testamentary were issued to O. L Price, who entered unon the dis- 'charge of his duties as executor, and ever since nas been ana etui is svicn executor. The answer prays for the admission of the will to probate in solemn form and that the second amended petition to revoke the same be dismissed. The reply denies every allegation of new matter in the further and separate answer, except as stated, admitting the death of Pittock. his residence and his estate situated in I same relief as asked in the petition.! After hearing testimony and argu ment of counsel the circuit court de- , nied the petition and entered a decree j admitting the will to probate in solemn form, establishing the same as the last will and testament of the testator, confirming also the appoint ment of O. L. Price as executor and awarding costs against the petitioner and she nas appealed. Burnett, C. J. No harmful error resulted in striking out of the orig inal petition, the parts thereof above quoted, for they were only conclu sions of law and the questions raised by them appear on the face of the writing and have been discussed in our presence. A great deal of space was taken in the briefs and much attention devoted in the argument, to the matter of probate jurisdiction, the proponents contending that the sole question which can be consid ered in this proceeding is whether, or 'not the will was the authentic document whereby the testator un dertook to dispose of his property, while the petitioner maintains there is involved not only the decedent's freedom from undue influence in the execution of the document, but also the validity of the instrument as a matter of law. - Referring to article VII of the con stitution of this state as it now stands, we find that by section 1-a thereof it is provided that: The Judicial power of the state shall be vested in one supreme court and such other courts as may from time to time be created by law. This was part of the amendment of 1910, which also provided in section 2-b that: The courts, jurisdiction and judicial system of the state of Oregon, except so far as ex pressly changed by this amend ment, shall remain as at present constituted, until otherwise pro vided by law. ' The argument seems to have pro ceeded on the assumption that throughout the state the old system prevailed as described in the original constitution, whereby ' the countf court "shall have the jurisdiction per taining to probate courts": section 12. article VII. The basis of the argument would be sound, had it not been for the provision by law em bodied in the act of February 17. 1919, codified as sections 3132-3140 Or. L. That statute provided in substance that in every judicial district com- ? rising only one county having over 00,000 population, there should be elected one circuit judge in addition to those then holding office in such district; that he should sit in a de partment to be designated by rule of the circuit court by an appropriate number, and be known as the depart ment of probate, and that the judge in such department should, in addi tion to the duties prescribed in the act, perform the general duties of a judge of the circuit court. The county court of such districts and the office of county judge were abolished, and upon the taking effect of the act all judicial jurisdiction, power and au thority of the county judges and county owurts, as distinguished from the power and jurisdiction as exer cised in the transaction of county business was conferred upon the cir cuit court of the judicial district com prising such county. The act goes on to say also, in substance, that in any proceeding or cause over which by existing laws the county court has jurisdiction, all of which are by the provisions of the act transferred to and- heard by the circuit court, the nrnpprttirfi nnd nrantiRA shall be gov erned by the existing laws applicable to such proceeding without any change, except that appeals may be taken direct to the supreme court. The court will take judicial notice that the act applies to Multnomah county, in the circuit court of which this proceeding was insiuuiea. The iurlsdiction of the circuit court was not in -any respect lessened or restricted by tne enactment men tioned.. Its powers were increased by the addition of probate jurisdiction. The conclusion, therefore, is that so far as Jurisdiction is concerned, ana whether we consider this proceeding as merely a contest or a will to de termine its authenticity or whether we treat it as a suit to construe the will, the tribunal before whicn the proceeding was had was possessed of full Jurisdiction to near anq deter mine the questions involved. It is true that the original judicial scheme was to continue under the new consti tution until otherwise provided by law, but the act of February 17, 1919, has effected the necessary provision for change. Having before us, then, for review, a decision of a court hav ing all the necessary original juris diction to consider any question which might be litigated, we proceed briefly to scan the pleadings upon which the proceeding is based. Reduced to its lowest terms, the effort of the petitioner is to set aside the will on the ground that it was the product of undue influence exercised over the testator by the trustees named in the will, whereby in fact it was their disposition of the property that was embodied in the will, instead of that of the testator, so that their will was substituted for his: and fur ther, that the result achieved was a will which is void on its face for rea sons which were assigned in the orig inal petition and re-embodied in para graph 11 of the amended petition already quoted. As to the mental capacity of the testator, no question is made, and it is sufficient on that feature to dismiss the matter with a quotation from the testimony of the petitioner herself: Q. There never was any ques tion in your mind, was there, but what your father was in posses sion of all his mental faculties up to the time of his death? A. No. There never was any ' question about that. He was in full possession of all of his facul ties to within a couple of hours.; before his death. As to the matter of undue Influence, the testimony goes no further than to show that for some vears the de fendant Morden had been in the em-- ploy of wie oregonian Publishing company, officiating as manager of the newspaper published by that cor poration, of which the decedent held the majority of the stock, and that for a like period the defendant O. L. Price had been the private secretary of the testator, who had large busi ness interests, having accumulated a fortune estimated in millions of dol lars. These.- two defendants mani festly had the confidence of the tes tator and had opportunity to exercise over him such influence as they pos sessed. This is the utmost that the testimony shows. But the evidence is convincing that at no time or place did either of the defendants exercise or attempt to exercise anv influence over the decedent in the matter of making his will. On the contrary, the testimony is clear that the initiative in the matter came from him and that the will was the product of his own mind and of his own dictation, with out the least suggestion from any one, so far as the record discloses, about what the document should contain or what disposition should be made of his property. in other words, as disclosed by the record before us it is apparent that he had very much more influence over the defendants than they had over him: that his word was the law of his business and that it was tneirs to ooey ana not to in fluence or dictate. On the Question of undue influence.' it is not enough fan snow mat tne qerendant had an op portunity to exereise such influence mi r i miisT R An nnntnr f hoi i. fluence was actually exercised, and not only so but that it was pushed to such an extent that the resultant will was not that of the testator but that of the parties procuring its execution: Hubbard vs. Hubbard. 7 Or. 42; Estate of jjomeer. la L'al. et2. Pac. 266, 15 Ann. Caa, 2u7. in re SfceU's estate, i0n nf mv stock In The Ore .oneor my SLOCK in i ne y ' eonian Publishing company shall be sold, but shaH be held intact during the entire period of 'this trust. I direct that my trustees shall vote said stock in favor of themselves as directors of such corporation, and it is. my desire ' and I request that C. A. Morden . shall be elected as manasrer of the corporation and shall be re tained as such, and that Edgar B. Piper shall be retained as editor of The Oreeronian until he shall become incapacitated or until he may voluntarily resisrn. The effort of the pleader Is to show, not that this will was the product of any corrupt agreement, but that it is void upon its face, no matter how pure the notive of the maker. The argument-by the petitioner, and she devoted much attention in- the evi dence trying to prove the same, is that without consulting the minority stockholders. Mr. Pittock. being the owner of two-thirds of the stock of The Oregonian Publishing: company, for the purpose of retaininc control of the paper, perpetuating his policies and directing its policy, management and board of directors for twenty years- after his death and to keep Piper as editor and Morden as man ager from leaving: him. -entered into an agreement with Piper to have the corporation pav him an increased sal ary and to keep him in his position as managing editor until Piper should become incapacitated or voluntarily resie-n. but not exceeding: twenty years after Mr. Pittock's death, and that he carried out his part of this agreement by directing his trustees to vote for themselves as directors and requesting them to elect Morden as manager and to retain Piper as editor. Further, according to her brief, petitioner insists that this agreement is null and void, illegal and contrary to public policy. No hint of such an agreement is found in the pieaainers. , So far as the petition is concerned, it might be called a demurrer to the sufficiency of the will on the ground that it carried upon its face defects to its validity. A great many cases have been cited where combinations have been entered into by stock holders among themselves whereby for personal advantage not to be shared by other stockholders they sought to dictate the policy of the corporation of which they were mem bers. That is not the present case. We have before us an individual stockholder dealing only with his own 1 property, exercising an attribute oi such property, that of testamentary disposition. It is not made to appear by the pleading that he so disposed of it on account of any sinister motive or by reason of any corrupt consid eration or advantage accruing to him self which did not equally inure to the benefit of the minority stock holders. The vicious principle of il legal combinations of directors to pursue certain policies generally for their own aggrandizement seems te be that each surrenders in advance his individual judgment irrespective of the good of the corporation or the rights of other stockholders. The es sence of the fault lies in the combi nation which cannot exist where a single majority .stockholder. for himself and in the management of his own property, formulates a cer tain corporate policy and undertakes to carry it out. "Of the general proposition that certain kinds of con duct not criminal in any one indi vidual may become criminal if done by combination among several, there can be no doubt. The distinction is based on sound reason, for a combi nation may make oppressive or dan gerous that which, if it proceeded only from a single person, would be otherwise; and the very fact of the combination may show that the ob ject is simply to do harm and not to exercise one's own just rights." Beach on private corporations, section 854. Some of the precedents cited by the petitioner are here noted: In Scripps vs. Sweeney, 160 Mich. 148, 125 N. W. 72, it is held, according to the sylla bus, that: The execution of a contract be tween four of the directors and stockholders of several corpora tions holding a majority of stock in each, without the consent of other stockholders, for purposes of personal gain, containing pro visions for the . continued em ployment of one of the contract . ing parties as manager at a fixed salary, and determining the busi ness policy of the several cor porations, is contrary to public policy and may not be enforced specifically. In that case Scripps and Sweeney were leading stockholders in several newspaper corporations. In effeot they, while occupying a position of trust, were contracting with each other for their own personal gain at the expense of the corporation, and consequently to the injury of other stockholders. Here, however, if con tracting at ail, Pittock was bargain ing with strangers, or at least non stockholders so far as appears, and was carrying out with his own prop erty what he had a right to do, if he had lived. In Manson vs. Curtis, 223 N. T. 313, 119 N. B. 559, a section of the Sylla- DUB reaaij liiub: It Is not illegal or against publio policy for two or more stockholders owning the major ity of shares of stock of a cor poration to unite upon a course of corporate policy or action or upon the officers whom they .will elect. An ordinary agreement among a minority in number but a. majority in shares for the pur pose of obtaining control of the corporation by the election of particular persons as directors is not illegal. Agreements upon a sufficient consideration between them, of such intendment and ef fect, are valid and binding if they do not contravene any ex press charter or statutory pro vision or contemplate any fraud, oppression or wrong against other stockholders or other il legal object. The vice upon which the court con demned the agreement in question consisted in the express stipulation that the president of the corpora tion should be only nominally so; that no interference with plaintiff's policy as manager should be tolerated, and in effect the board of directors should be mere dummies whereas the statute required that tne affairs of the corporation should be con trolled by the directors either in per son or by subordinates under their authority. In the instant case the testator proposed to work out his solicit by the legal election of direc tors by a majority of the stock which he himself owned and would nave had a right to vote in that way without question,! if he had lived. In Funkhouser vs. Capps, 174 a W. 897, it was held that a contract pool ing what constitutes a majority of corporate stock on condition that the same shall be voted so as to put one of the parties in the manage ment of the company with certain advantages in sale of his stock on severance of his relations with the concern, is void as against the Texas statute giving to the directors the general management of the affairs of corporations. In that case, as in others, one of the conditions of the agreement was to give to one of the parties thereto a private advantage not enjoyed by other members of the corporation. The same vicious ele ment appeared in Gage v. Fisher, 6 N. t. 29 1, 31 L. R. A. 557, where it was decided that a contract to allow another to control the voting of stock based upon a promise of one who Is to control such stock to se cure for the owner of the stock an office in the corporation, is illegal. So, in Gilchrist v. Hatch, 100 N. 15. 473, it is said that: As a general rule a contract by a director or a majority stock holder of a corporation whereby he undertakes in consideration of a private benefit or advantage accruing to himself, to secure the appointment of another to a lucrative office or a position of profit in the corporation, is against common honesty, and therefore against public policy. ' In Guernsey v. Cook, 120 Mass. 501, the defendants owners of a, majority of the stock of a corporation, agreed to make the plaintiff treasurer f the company in consideration of his tak ing .part of the defendants' stock. The court there Baid, among other things: The contract if reasonably sus ceptible of two 4neanings, one legal and the other not. must in deed receive an interpretation which will support rather than defeat it and the presumption is in favor ot its legality. But this contract necessarily implies that the defendant intended to derive and the plamUff intenaa (4 ive him a private advantage not shared by the other stockholders in consideration of his election as " treasurer. ... It was the pur pose and effect of the contract to influence the defendant in the de cision of a question affecting the private rights of others by consid erations foreign to those rights. The promisee was placed under di- rect inducement to disregard his duties to other members of the corporation who had a right to de mand his disinterested action in the selection of suitable officers. He was in a relation of trust and confidence which required him to look only to the best interest of -the whole, uninfluenced bv pri vate gain. The contract operated as a fraud on bis associates. All through the authorities cited by the petitioner runs the vein of pooling among a group of stockholders where by they conspired either to seek some private advantage not common to other members of the corporation, or to pass the control of the concern to others than the directors in whom the ; ..ia lu ic vcbls ine manage rueni. aucii instances are found in Woodruff vs. Wentworth, 133 Mass. 309; Hampton vs. Buchanan, 51 Wash. 155. 98 Pac 374; Jackson vs. Hooper. 76 N. J. Eq. 692. 75 Atl. 568. 27 L. R. A. (X. S.) 658; Luthy vs. Ream. 270 111. 170. .10 N. E. 373, Ann. Cas. 1917 B. 368: Rush vs. Aunspaugh, 17 Ala. 642. 60 So. 802; Timme vs. Kopmeier. 168 Wis. 571, 156 N. W. 961; Withers vs. Ed wards, 26 Tex. Civ. App. 189. 62 S. W. 795. There is another class of cases, which holds that each stockholder has a right to rely upon the judgment and interest of his fellow stockholders and that no shareholder -has a- right- to separate himself irrevocably from the power pf voting his own stock. . One sample of such cases is Morel vs. Hoge, 130 Ga. 625, 61 S. E. 497. 16 L. R. A. (N. S.) 1136-' On the other hand, viewing the present situation as a combination among several stockholders, " which it is not, however, the rule is thus laid down in 14 C.J. 913. section 1418: While there is some authority apparently opposed to this view, ' the weight of authority holds that stockholders may combine for the purpose of controlling the man agement and business of a cor poration, and agree in pursuance thereof that they will vote their stock as a unit according as a majority of them may determine, provided no fraud is committed or undue advantage taken of stockholders who are not mem bers of the combination. See also 1 Thompson on Corpora tions, 2d Ed., sections 893, 894 and 895. In Winsor vs. Commonwealth Coal -company, 63 Wash. 62, 114 Pac. sua, aa t. a. (M. s.) 63. it is saia: I Persons owning stock have the uuqualified right to combine their interests to secure the manage ment of the corporation when such management is fair to all stockholders alike. In White vs. Snell, 35 Utah 434. 100 Pac. 927. a majority of stockholders placed their stock in the hands o( other stockholders to vote, manage the corporation and generally to do all things with the shares that the owners themselves might do, for two years and five months, the trustee to pay the owners a fixed sum per month as well as all assessments and indebt edness incurred by them, and it was held not to be void as against public policy to do this. Barnes vs. Brown.' SO N. Y. 527, was a case where the plaintiff was director and president of a corporation and owned a majority of the stock then issued. The corpora tion owed him for money loaned. Prior to his election as director and presi dent third parties had made a con struction contract with the company. After taking office he bought an In terest in the contract. In this state of affairs he sold his stock and inter est in the contract to the defendants, who agreed to pay him the amount owed him by the company and to de liver to him 2000 fully paid-up shares of its stock. Both parties performed, except that defendants delivered stock not legally issued and not fully paid. In an action to recover damages, it was held: That assuming it was part of the scheme that plaintiff should transfer the control and manage ment of the corporation, he had the right to transfer all his stock and interest and with it the control which he had the right to exer cise, as he held the majority of the stock then issued; and that in the absence of proof of any wrongful or fraudulent intent, no policy of the law was violated by the arrangement. In Bonta vs. Qridtey, 77""App. Div. 33, 78 N. Y. S. 961, affirmed in mem orandum opinion in 185 N. Y, 614, two stockholders in a bank agreed that the plaintiff should be elected cashier for five years at $2500 a year; that he should exercise his irffluence in favor of the bank and the retention of the then board of directors; and that he should buy 50 shares Of the bank's stock, which they agreed to repur chase from him at $135 per share on his ceasing to be cashier. The court tnere neia: So far as we have been able to discover, it has not yet been held by any court that two stockhold ers of a corporation may not legitimately agree between them selves to use their influence joint ly to secure the election of a cer tain board of directors of auch. corporation, even if one of such stockholders happens to be its - cashier, provided only - that the proposed agreement is entered into in good faith and for the pur pose of promoting the best inter ests of the corporation and in fact does promote its best interests. In Elger vs. Boyle. 126, N. V. 3. tit, it was said: The power to vote stock inci dental to Its ownership may not be taken from the holder in ln vitum but he may qualify his ownership by His own consent that another may vote it for him or may accept the ownership with a condition involving that con sent. In that case a testator directed his executors to form a corporation to carry on his business, the stock te be sold according to the direction of certain named individuals, and the arrangement was held to be valid, the court saying: These trustees became pos sessed of the stock, not as their own asset but solely by virtue of the "will and of the conditions which the will imposed. One con- dition involved their consent to the restriction of their voting power and no rule-of law or pub lic policy is offended by givmsr effect to that contract. Again, In Carnegie Trust Co. vs. Security Life Insurance company. 111 Va. 1, 68 S. E. 41a. 21 Ann. Cas. 287. 31 L. R. A (N. S.) 1-186, the second para graph of the syllabus reads thus: An agreement between holders of shares in a life insurance com pany to place their stock in the hands of trustees for a period of 25 years to enable the trustees more efficiently to manage the corporation, is not against publio policy. - In Venner vs. Chicago' City Rv. Co., 258 111. 523, 101 N. E. 949, the doctrine was thus inculcated: It has been expressly held that a contract by the owners of more than one-half of the shares, of stock of a corporation to elect-She directors of the corporation so as to secure tne management of its . property, to ballot among them selves for directors and officers if they could not agree to cast their vote as a unit as a majority should decide so as to control the eleotlon, and not to buy or sell stock except for thejr joint bene fit. Is not dishonest violation of -the rights of others or in con travention of public policy. . . . A majority, of the stockholders may therefore by uniting in the same proxy confer upon an agent unlimited discretion to vote tneir stock and there is no policy of law to prevent their transferring their stock to a trustee with the like unrestricted power. It is the - purpose for which the trust was created which must determine its legality. In Smith vs. San Francisoe & N. P. R. R. Co.. 115 Cal. 584. 47 Pac. 582, three parties combined to buy 42.000 shares of the railroad company's stock belonging to the Donahue estate and to vote it in one block so as to retain control of the company for five years, the vote to be cast according to the wish of the majority of the block ascertained by ballot. The court said: It Is not in violation of any rule "or principle of law for stockhold ers who own a majority of the stock -in a corporation to cause its affairs io be managed to such a -way as they may think best calcu lated to furthex the ends of the corporation and for this purpose to appoint one or more parties who shall vote in such a way as shall carry out their plan. In Bowditch vs. Jackson Co.. 76 X. I H. 351, 82 All. 1014, Ann. Cas. 1913 A, 3b6, according to the .syllabus we learn that: An agreement whereby three fourths of the stock of a corpora tion is transferred to trustees who are to hold the same for one year, vote Jt in favor of a pro posed sale of the corporate prop erty, distribute the proceeds, and take the necessary steps to wind up tbe company's affairs, is not .open to objection, where it ap pears that its execution will work no wrong to the corporation and confer no special benefit upon the share holders who are party to the compact. Speaking of voting trusts and defin ing them, the definition is tnus torm ulated in section 1705. 3 Fletcher's Cyclopedia of Corporations: A voting trust may le compre hensively defined as one created by an agreement between a group of the stockholders of a corpora tion and the trustees, or by a 'roup of Identical agreements be "tw'eeri individual stockholders and a common trustee, whereby it is provided that for a term of years, or for a period contingent upon a certain event, or until the agree ment is terminated, control over the stock owned by such stook- noiaers, eitner ror certain pur poses or for all, shall be lodged in the trustee, either with or with- out a reservation to the owners or persons designated by them of the power to direct how -such con trol shall be used. A mere de posit of shares' of stock in the hands of a depositary with direc tions to vote in the manner in which he Is instructed by a com mittee appointed by the stock holders, and subje'et to their con trol. Is" not a voting trust, it not appearing that the ownership of the stock and the voting power were separated by the agreement under which the committee was appointed and the stock deposited. In the instant case there was no voting trust .within he meaning of the definition. There was no com bination of stockholders. The testa tor was the owner in his individual right of a majority of the stock of the corporation. He had a right as an attribute of property exercised in testamentary form, to direct how and or whom the stock should be voted. No one can rightly say that if Pittock living had announced his intention steadily for 20 years to vote for cer tain directors wno wouill hi luiu carry out curtain policies as to em ployes, he couia nave Deen enjoineu from the consummation of his pur pose. How, then, can it be said that he cannot direct his trustees to do that same thing after his death, for a limited period? The will does not purport to perpetuate tne umnaLiou upon this property for more than the length of any life then in existence and 21 years thereafter. The period of the trust is expressly limited to 20 years. It does not constitute a per petuity. In other words, considering tne tace or tne win, mere is no vouns trust, no combinatien of a group ot stockholders. There is only the ex pression of a single individual, doing as he had a right t do with his pri vate property. But it is urged npon us that this was the result of an agreement which is contrary te public policy. As we have pointed out. agreements to vote stock in a certain way are not neces sarily per se void. In the cases cited in support of the petitioner's conten tion there has been always some ele ment of private personal gain tc ac crue to the contracting parties, not to be enjoyed by other members of the corporation. In this instance, during his life time the testator could and nrnhablv did vote his stock so as to secure the election of directors to his liking. From the testimony it is piain that Mr. Pittock desired to perpetuate for a time, at least, the existing per sonnel of the editorial and managerial departments of his corporation. The Oregonian Publishing company, of which he was the principal owner, and to maintain the standing of The Ore gonian, which under his direction had attained wide influence inthe news paper world. He had been assisted in this matter for some years by the trustees, who were familiar with the property and its requirements as a going concern and who, it is probable, were best qualified, at least in the judgment of the testator, to carry it on as a successful venture for some time to come. It was certainly law ful'for the living owner of two-thirds of the stock so to shape the directo rate as to accomplish this purpose. Equally after his death, so far as he lawfully could direct by testamentary disposition of his property, it was competent to promote the same end by the same means. if ia ure-ed. however, that the effect of his will was to compel the trustees nr.t nniv to vote for themselves as directors but to retain both Morden as manaerer and Piper as editor, with the result that the trustees. takinK i r , na directors, would be com- j celled without regard to the real in terests or tne corporation to carry oui the policy indicated by the will, whether it be for the benefit of the corporation or not; in other words, that their duty as trustees would thus be brought in conflict with their obli eations as directors, to the detriment of the latter relation. This argument is predicated upon the theory that the words "desire" and "request" used in The Oregonian clause with respect to Morden and Piper are necessarily mandatory. The significance of such words as "desire" and "request" was considered in Beakey vs. Knutson. u Or. 674, 174 Pac. U49. We there laid down the -rule In substance that in construing words such as "desire" and "request" when used in a will, the testator's Intention is controlling, and where the words must necessarily oe fAiinwnH to narrv out the clear pur pose of the testator they are to be regarded as words or command or di rection. The conclusion there was strengthened bv the fact that the will disposing of the property involved used this language as expressing the testator's desire and request to his executrix: I direct and request that she use such or all of the money which may be the proceeds of any prop erty she may sell. The term "desire" was held to be imperative in its purport, and con struing the whole will together, hav ing in view the plain' intent of the testator, it was determined that in the lierht of all these circumstancea and accompanying words the request and' desire expressed by the will were controlling. The doctrine is thus stated in i Alexander on Wills, sec tion 1096: A trust may or may not be cre ated according to whether or not the precatory expressions are di rected to the executor or to the beneficiary. Expressions of de sire, recommendation, hope, or the like, addressed to the beneficiary, mav be reearded as being merely words of request and not of com mand, while if addressed to the executor of the testator's will, the testator having the right to com mand the manner of the disposi tion of his property, such expres- sions wiil be considered and con strued as commands, although clothed merely in the language of civility, and the courts will en force them as a duty imposed upon the executor. We note in passing that the desire and request in the present Instance are addressed not "to the executor as aiir-h but to the trustees, successors of that executor. Trustees as a rule have more discretion than the immediate mandatory of the testator. The duties of an executor are plainly defined by the terms of the will as measured by the provisions of the statute. The trustees are in a sense beneficiaries, rather than occupying the character of executors.. The language qf the will as to the trustees will-bear a more liberal construction than if ad dressed directly to the executor as such. We find the rule thus laid down bv Mr. Justice Semmes in Lines vs. Darden. 6 Fla. 61. 73: The words "will and desire" are not necessarily mandatory, nor does the question turn upon their grammatical construction. Their import and signification depend, not so much as to whom they are addressed as to the party usin? ' them, the act to be performed and the certainty of the subject mat ter. Again, in Coulson vs. Alpaugh. 163 111. 298. 302. the principle is thus ex pressed: The words "request" and "re questiner" are. under many cir cumstances, precatory words suf ficient to raise a trust, and under other - circumstances it is other wise. It depends not only upon the senae in w hich the words axe used whether Intended as im perative, or as merely the expres sion of a wish or preference, the observance of which is left to the discretiqai of the first taker but even where it is clear the lan-s-uaee is intended as mandatory, it also depends upon the fact whether the intention is defeated bv the other provisions of the will, for it is just as essential to the creation of a trust there should be certainty of object and certainty of subject matter as it is that the words in which the intention is expressed should be imperative. In Williams vs. Worthington. 49 Md. o-!. the syllabus in part declares that: Words of recommendation and other words precatory in their na ture are not to be construed as peremptory unless by the con text of the will that meaninx is forced upon them. It is taught in Floyd vs. Smith. 59 Fla. 485. 51 So. 537. 138 Am. St. 133. 1 Ann. Cas. 318. 37 L. R. A. (N. S.) 651. -that: The real question is: What was the intention of the testator? Uid he intend that the words ex pressing the wish, desire, recom mendation or confidence or the like should novern the conduct of the party to whom thev mav be addressed, or whether thev are an indication of what he thinks wouid be a reasonable exercise of the discretion of the party, leav ine: it. however, to the party to exercise his own ilisrrptinn it does not seem to have been found possible to formulate any definite statement of principle which will apply to every case. And in a note to this case In 21 Ann. Cas.. supra, we read this: The cardinal rule used in the interpretation of wills that the intention of the testator shall govern applies to the creation of precatory trusts and no hard and fast meanim? can be eiven to words apart from their connection and the atmosphere of the instru ment in which they are used. It is said in Estate of Pforr. 144 Cal. 121. 77 Pac. 825. that "desire" is a request when addressed to the de visee, but a command when addressed to the executor. To ttie same effect is Post vs. Moore, 181 N. Y. 15. 2 Ann. Cas. 591. Revertina- to The Oregonian clause, we find that the will -'directs" the trustees to vote the stock in favor of themselves as directors of said corpo ration. Immediately the tone of the language chancres, "and it is my de sire and I request." etc. If the tes tator, familiar as he was from his experience as -a newspaper man with the use of words and their shades of meaning, had desired to make the employment or Alorden and Piper im perative, he- most likelv would have grouped all those matters under the manaatorv word -direct. In the im mediately preceding clause of the will he had declared that "the trustees aiiau nave tun anq oompiete power and authority over mv estate: they shall have full and complete posses sion and control of same." Finally in that clause, soeaiting directly about snare oi stocK, ne employed this lan guage: 'Thev shall have power to vote my stock in the various corpo rations at all meetlnas of the stock holders of such corporations and shall nave an powers incident to the own ershio pf such stock." In view of this strong: and comprehensive laneruacre. the chanere of his expression immedi ately from "direct" to "desire" and "request" is very significant and we think it is legitimate, to construa the latter clause as merely preeatorv and advisory, but not mandatory. More than all that, it is not shown or intimated that the agreement, if there was one, to employ Morden and Piper would he harmful to the best interests ot tne corporation or hurt ful to the interests of the other stock holders, or that it was based upon any benefit private or personal to Pittock. Their long retention in the service of the corporation attests their ability and faithf ulnesB, and in the light of the best authorities it was legitimate for the controling stockholder so to shape the direc tion of hrS property and his testa mentary instructions to his trustees as to ex-fft-ess his best judgment and give it effect in corporate operation through the regular channel of a board of directors elected by that stock. Again, It is said in the attack upon the will that the trust created is void for uncertainty. Some of the prece dents supporting that contention are here noted: McMonagle v. McGlinn, 85 Fed- 88. In determining whether to apply the statute of limitations to plaintiff's suit to declare a trust and to subject thereto certain property dependent upon whether the bill showed an express trust to which the statute would not applv, or a con structive trust to which"it would ap-' ply, the court, quoting from 2 Pom. Eq. Jur.. sections 100S-1010, said an express trust must be reasonably cer ciaries, 'their Interests and the man- ner of performance of the trust. In tain aa lo terms, property. Denetl- that case the plaintiff claimed that her brother had collected Dart of an estate coming to her, had paid her part of the proceeds and retained the rest. The exact amount of the prop erty retained was not certain. There was no showing as to what use it was agreed he should make of the property, how long he should keep it, or what disposition he should make of it. Hence there could be no ex press trust; but that was the sub stance of her declaration and the court held that the plaintiffs com- rlaint did not show an express trust, n Greenwood v. Greenwood, 97 Kans. 380, 155 Pac. 807, Mrs. Greenwood ob tained a decree of divorce from her husband in which - it was "ordered, adjudged and decreed that the said plaintiff shall have and there is hereby set apart to her as her sep arate estate and as and for her ali mony in said action the following.de scribed real estate (describing it), to be held by said Anna Greenwood in trust for Grace and Helen Greenwood until the said Helen Greenwood shall attain her majority, and at the ex piration -of said time or upon the death of both of said children before said time, the title to said property shall vest in the said Anna Green wood absolutely and in fee." Mrs. Greenwood had contracted to sell this property to her former hus band, who sued for ""Specific perform ance, and sjte resisted on the ground that the realty was held in trust. Concerning her estate, the court held that it was not affected by the words "in trnst" and that owing" to the utter aosence of terms of the trust or of its administration, she took a fee. In Orr v. Yates, 209 III. 222, 70 N. E. 731, William H. Yates devised a farm to a trustees for the sole use and benefit of his daughter during her life and at her-, death without is sue, for the benefit of the widow if living, and at the widow's death, the land was to be divided between the testator's brothers and Bisters and their heirs. No provision was made for accounting or manner of conduct ing the farm. The court said: It may be conceded that the declaration of a trust must be reasonably certain in Its mate rial terms, and that this requisite of certainty includes, first, the subject matter or property em braced within the trust; second, the beneficiaries " or persons in whose behalf the trust is created; .third, the nature and quantity of interests which they are to have, and fourth, the manner in which the trust is to be per formed. If the language Is so vague, general or equivocal that any one of these necessary ele ments of the trust is left in real uncertainty, the trust must fail; er if any one of the three things necessary to constitute a trust is wanting that is, first, suf ficient words to raise it; second, a definite subject, and, third, a certain or ascertained object--the trust will fail. It is not prac ticable to adopt any specific def- inition of a trust which can be applied to all cases. Many at tempted definitions are to be found In the texthookg and de- WE WILL remain closed all day today to give all "Voganites" a chance to attend the Grocers' Picnic at Bonneville and enjoy themselves to the utmost. Vogan Candy Company Portland Spokane Tacoma cided cases, but it is unimportant here to accept one rathex than -another. All must agree that it is not necessary to the validity of a trust tha't every element necessary to constitute it must be so clearly expressed in de tail in the instrument creating . it that nothing can be left to inference or implication. No par ticular form or words are nec essary, but wherever an inten tion to create a trust can be fairly collected from the lan guage of the instrument and the terms employed, such intention will be supported by the courts. . . . The fact tlfat the times and manner of accounting for the rents and profits of the trust es tate are not fixed cannot render " , the trust void. The law will compel the trustee to render ac counts In proper manner and at proper times. The absence of -specific directions as to when and in what manner the trustee shall render his account s, simply loaves that matter to be determined by construction. If the trustee and cestui que trust disagree on that subject, the courts mav be re sorted to for a settlement of the differences. In Colton v. Colton, 127 TJ. S. 00. the will reads thus: I give and bequeath to mv wife, Ellen L. Colton, all of the estate , real and personal, of which I shall die seized or possessed or entitled to. 1 recommend to her the care and protection of my mother and sister and request her "' to make such gift and provision for them as in her Judgment will be best. Notwithstanding- tha lniflnlt language, which hardly could be more uncertain, the court held that the widow took the property affected by a trust for the benefit of the de cedent's mother and sister. i But giving a trust in discretion as to the method of carrying out a definite purpose does not render the trust void and if the trustee - , refuses altogether to exercise . that discretion with which he is invested, the trust must not on " that account be defeated. 26 R, ' C L.. 1184. Weatherhead v. Sewell, 18 Tenn. (9 Hemp.) 272, was a case where the language of the will was, "my es tate to be equally divided among mv children, to each of my daughters a small tract of land . . . my lands and slaves to be equally divided amongst my children." It was held in construing the will that the clause "to each of my daughters a small tract of land," was void for uncer tainty; but the court did not set aside the whole will for the minor uncertainty. Other authorities are cited in the brief of the petitioner, but in the main they are precedents which deal only with a certain clause of the will but do not allow it to overturn the entire instrument. The trust created by this will, how ever, is reasonably certain for all practical purposes for the manaee ment of a business during so long a period as twenty vears. It declares that it is made "to avoid as far as pos sible any loss or depreciation of the estate." Here we have the principal object for which the trust was formed. As a means and manner by which this result is to he attained with a view of final distribution-of the property anions his descendants, the testator has given to his trustees full and Somplete power and authorltv over is estate, with the riirht to full and complete possession and control of the same, and they are directed to keep surplus funds invested in eood securities. As part of it. they are to pay monthlv allowances to his wife and children and to their descendants by rifrht of reoresentation. Th6 trus tees are directed to accumulate enough to pav off the debts and obli gations and when that is accomplished thev shall disburse. the excess of such reserve to his wife and children: and finally upon the termination of the trust, at he end of twenty years, they shall divide the property among his descendants. It would be Impos sible for a testator to foresee and pro vide for all of the details to be ob served in the management of a trust estate of such magnitude. It is suffi cient if it be done so that anyone of reasonable discretion and Judgment could take the property and manage it in a reasonably faithful manner. The action of the testator in thus reoosinir so large a trust in two em ployes who had been faithful to him throuerh many years may or may not have been provident, as the sequel shall prove, but it was not unlawful, and the will in that respect is a valid document, declaratory of his dispo sition of his estate. Summinar up. we hold that there was ne error in striking out of the original petition the conclusions ot law stated as grounds for the conten tion that the will was void. The peti tioner has had the benefit of a full argument and examination of the questions so raised. The circuit court w ' ' wnicn tins oroceeoine: was in- stit.utei hLd amD,le jurisdiction of the w1helh?.r. l be merely to set aside the will as voi(Lior undue influ ence, or whether the issue was the construction of the will with a view of haviner it declared void. In the ab sence of an allegation of an illegal contract void as against public policy the will cannot be attacked upon that ground- Further, no agreement of stockholders proceeding from anv pri vate mercenary consideration of bene fit to themselves in which other mem bers of the corporation could not share, has been shown. The testator in disposing of his own property had a riirht to direct his trustees to vote and act as he himself could have done while living. Even conceding that tnere was a contract, there is nothing to show that it was hostile to the interest of any stockholder or dis qualifying in its effect upon the trustees who have succeeded to th, interests of the testator. Finally, the Lruai esiaonsnea oy tne will is suffi ciently certain in all of its features for practical operation. To close this opinion, we employ the final words of the court's deliver ance in Carnegie Trust Co. vs. Security Life Insurance Co.. Ill Va. 1, 68 S E t&stfllV.?- 31 t As was said in Brightman vs.." Bates. 15 Mass. 105, 66 N, E. 809, the question before us is not wrrether or not it would be possi ble to carry out the contract in a ' way which would, have made the contract bad if specified in it. but -whether it was impossible to carry out the contract in a wav which might lawfully have been speci- ' fied in advance. If in the future ' the trustees are guilty of a breach" of trust, or do anv unlawful act -, to the prejudice of the interests of the corporation or its stock holders (in this instance the-, cestuis que trustent). a court of equity is always ooeno give such relief as the nature of the case may require. The decree of the circuit court Is affirmed. MJl. PITTOCiv's'PLAXS CPHELD Statement of Counsel as to Meaning of Decision. The following statement was given out yesterday in behalf of counsel for the defendants in the Pittock will case, Carey & Kerr, JohnF. Logan and D. P. Price: "The decision of the supreme court In the matter of the Pittock estate closes litigation over one of the larg est estates probated In the courts of Oregon. By a unanimous opinion of the entire- court the purposes of Mr. Pittock in the preservation and con duct of his estate for 20 years after his death are confirmed as the wish and will of - a careful, judicious pioneer, who, through long years, amassed a fortune. Every contention of the contestants is by this decision Conclud art en PattB 7. Column 1.) 1