Harris v. Clark et al.

Harris v. Clark et al. Will. — Illegal Trust. — Equitable conversion. Testamentary provisions, whereby either real or personal estate is set apart, a portion of the increase of which is to accumulate until the happening of a contingency, which may not occur until after the expiration of two lives in being at the decease of the testator, are void, under the revised statutes. A devise to executors, with power to sell, but without an absolute direction to do so, does not effect an equitable conversion. Where the material provisions of a will are illegal, and cannot be separated from the rest, without defeating its general scheme, the whole is void, and the property must be disposed of, as in case of an intestacy. * 243 1 Appeal from the general term of the Supreme -* Court, in the sixth district, where a decretal order declaring void the will of Sidney Smith, deceased, had been affirmed, and a final 'decree entered in accordance therewith. This was a bill in equity, filed in the late court of chancery, by Nancy Harris, one of the heirs-at-law and next of kin of Sidney Smith, deceased, against the executors, and others, praying that the will of the decedent might be declared void; that it might be decreed that the real estate descended to his heirs-at-law, and that the personal estate might be distributed among his next of kin. Sidney Smith, a merchant in New York, died in July 1844, leaving real and personal estate amounting in value to $150,000 to $200,000. His only heirs-at-law and next of kin were the plaintiff, his sister, who was the wife of Levi Harris, and Josiah C. Cady, a minor son of a deceased sister. The plaintiff had one child, Lucy Harris, then about six years of age. Prior to his decease, the decedent made and published a last will and testament, upon which the questions involved in this case arose, in the following terms: “ In the name of God, amen. I, Sidney Smith, of the city of New York, being of sound and disposing mind and memory, but regarding the uncertainty of this life, do make and publish this my last will and testament, in manner and form following, that is to say: I give, devise and bequeath unto my executors, hereinafter named, and to the survivors and survivor of them, all the property and estate, real, personal and mixed, of every name, nature and description, wheresoever situate, of which I may die seised or possessed, or to which I may be entitled, at the time of my death. To have and to hold the same, unto my said executors, the survivors and survivor of them, for the uses and purposes and upon the trusts following, that is to say: “ 1. Upon trust to invest the sum of $30,000, and to pay in semi-annual instalments, to my sister, Nancy Harris, wife of Levi Harris, of New Berlin, Chenango county, New York, during her natural life, out of the interest or income arising from such investment, the yearly sum of $700 (such payments to be made to my sister upon her own individual receipt, for her own separate use and enjoyment, free and clear from all claim thereto, or interference therewith, of her husband); and the residue of the interest or income arising from said investment, to re-invest, from time to time, as an addition *to and accumulation of said principal sum of $30,000; and to continue so investing the interest or income arising from said principal sum, and the acTumulations thereof, until its final distribution, as hereinafter directed. In case of the death of my said sister, leaving her daughter, Lucy Harris, her surviving, then to pay to said Lucy (or to her lawful guardian, if she should be an infant, for her use and benefit during her infancy), after her mother’s death, the said sum of $700 yearly, in semi-annual instalments, during her natural life; and upon her death, leaving issue her surviving, if the said Nancy Harris shall be then deceased, to make over said principal sum of $30,000, acd the accumulation thereof, to the said issue of the said Lucy. But if my said sister shall die, and her said daughter Lucy shall also die, without leaving issue her surviving, then to convey and make over the said $30,000, and the accumulation thereof, in whatever description of securities or property it may consist, to my nephew hereinafter named, on his attaining the age of twenty-one years, or to his lawful issue, if he shall before then have died, leaving such issue. But in case of the death of my said sister, and of her said daughter Lucy, without issue, and also of my said nephew, before he attains the age of twenty-one years, without leaving lawful issue, then to divide the said $30,000, and the accumulation thereof, equally between my two friends, Ralph Clark and Eneas P. Clark, of the city of New York, two of my executors hereinafter named. “ It is also my will, and I direct my said executors to hold, for the benefit of my said sister, a certain mortgage belonging to me, made by said Levi Harris, to Dexter Smith, upon the farm on which said Levi Harris resides (which said mortgage is now in the hands of Noah Ely, of New Berlin aforesaid), and from time to time, as the interest which shall become due upon said mortgage shall be received by them, to pay over the said interest to my said sister, in like manner as they are above directed to pay to her the yearly sum of $700 aforesaid. I leave it optional, however, with my said sister, to *require my executors to collect the »}£ •)/[K I 9 interest upon the said mortgage, or to allow it to accumulate and remain a lien upon the mortgaged premises. I also leave it discretionary with my said sister, to direct a foreclosure of said mortgage, at any time she may deem advisable; and in case of such foreclosure, if the said mortgaged premises are sold, I direct my executors to purchase in the same (provided such purchase can be made for the amount which shall then be due on said mortgage, with the costs and charges of such foreclosure and sale), for the sole and sepárate use and benefit of my said sister, during her natural. life, free and clear of all control or interference of her husband ; taking the title, either in the name of my said sister, or in their names, to be held by them in trust for her, as they may he advised by counsel will best secure to her the title, use and enjoyment of said premises, during her natural life, free and clear of all claim thereon of her husband, and not liable for or subject to his debts. And if, at any time, my said sister shall leave the said premises to reside elsewhere, then and in that event, I direct that the rents, issues and profits thereof shall be paid to my said sister, during her natural life, in like manner as the yearly sum of $700 is above directed to be paid to her. In the event of such foreclosure of said mortgage as aforesaid, and a sale of said premises, if the same shall bring, upon such sale, more than the amount due upon said mortgage, with the costs and expenses of foreclosure and sale, it is my will, that my executors invest the proceeds of the sale, to the amount then due for principal and interest upon the'mortgage, either in the purchase of a suitable farm as a residence for my said sister (taking the title thereto, either in her name, or in their own names, in trust for her, as they shall be advised by counsel will best secure to her the title, use and enjoyment thereof, during her natural life, free and clear of all claim thereon of her husband, and liability thereof for his debts), or, at the option of my said sister, invest the proceeds of said sale in bonds and mortgages, and pay to her the interest arising from such investment, during her natural life, in the same manner *as the said yearly sum cf p. ... ^„ » I ^ y4ii $700 is directed to be paid to her. “In case of the death of my said sister, leaving her said daughter Lucy her surviving, then it is my will, and I direct that the interest or income arising from said mortgage, or from what may have been realized therefrom, be paid to the"said Lucy (such payment to be made to her guardian, while she remains an infant), during her natural 'fe; and upon her death, leaving issue, that said mortgage or whatever may have been realized therefrom, be conveyed and made over to such issue. But upon the death of my said sister, and the death of her said daughter Lucy, without leaving issue, then that the said mortgage or whatever may have been realized therefrom, be conveyed and made over to my nephew, hereinafter named, on his attaining the age of twenty-one years, or to his lawful issue, if he shall die, before attaining that age, leaving lawful issue. But in case of the death of my said sister and of her said daughter Lucy, without leaving issue, and also of my said nephew, before arriving at the age of twenty-one years, without leaving lawful issue, then that the said mortgage, or whatever may have been realized therefrom, be equally divided between the said Ralph Clark and Eneas P. Clark. “2. Upon trust to invest the sum of $30,000 for my nephew, Josiah Cleveland Cady, of Providence, in the state of Rhode Island, son of my deceased sister Lydia ; and to. expend and use in the maintenance, support and education of my said nephew, out of the interest' or income of said investment, the yearly sum of $700) until he shall arrive at the age of twenty-one years; and; the residue of said interest or income beyond the said $700, to re-invest as an addition to and accumulation of said sum of $30,000; and to continue so investing the said, interest or income arising from the said $30,000, and the interest or income arising from the accumulation thereof, until the final disposition of the said principal sum and the accumulation thereof as hereinafter provided, that is to say: If my said nephew shall live to attain the age of twenty-one "'years, then to convey and f t make over the said $30,000, and the accumula- *- tion thereof, in whatever property or security the same may consist, to him, on his arriving at that age; or in case of his death, before attaining that age, leaving lawful issue, then to convey and make over the same to such issue. But in case of the death of my said nephew, without leaving lawful issue, before attaining the age of twenty-one years, then to convey and make over the said $30,000, and the accumulation thereof, upon the death of said Lucy Harris, to her issue (if any), and upon the death of said Lucy, without issue, then to divide the same equally between the said Ralph Clark and Eneas P. Clark. If, however, it shall be found that the said yearly sum of $700 is insufficient for the maintenance and proper education of my said nephew, my said executors may, in their discretion, advance and use out of the accumulation of the interest of the said $30,000 last mentioned, such further sum as may be required for that purpose, but shall not in any way encroach upon the said principal sum of $30,000. “3. Upon trust to invest the sum of $5000 upon bonds and mortgages, and to continue to re-invest the interest or income arising therefrom, by way of addition and accumulation of said principal sum of $5000 and the interest or income arising from such accumulation, and to transfer and pay over the same to James Bogart Clark, the son of my friend Ralph Clark, of the city of New York, upon his attaining the age of twenty-one years. “4. Upon trust to invest the sum of $5000, upon bonds and mortgages, and to continue to re-invest the interest and income arising therefrom, by way of addition to and accumulation of said principal sum of $5000 and the interest or income arising from such accumulation ; and to transfer and pay over the same to Elizabeth B. Clark, daughter of the said Ralph Clark, upon her marriage, or on her attaining the age of twenty-one years. “5. Upon trust to invest the sum of $5000 upon bonds and mortgages, and to continue to re-invest the * 248 1 *^n^eres* or income arising therefrom, by way of -* addition to accumulation of said principal sum of $5000 and the interest or income arising from such accumulation; and to transfer or pay over the same to Virginia Clark, daughter of my friend Ralph Clark, of the city of New York, upon her marriage, or on her attaining the age of twenty-one years. 6. Upon trust to invest all the rest, residue and remainder of my estate, and to accumulate the interest or income arising therefrom, to be disposed of and divided as follows: In case of the death of my said sister, Nancy Harris, and of the death of her said daughter Lucy, leaving issue her surviving, and leaving also my said nephew surviving, if my said nephew shall have attained the age of twenty-one years, then to be divided between such issue of said Lucy Harris and my said nephew, equally; the said issue of said Lucy taking one-half, and my said nephew taking the other half. If my said sister shall die, and her said daughter Lucy shall die, leaving issue, before my said nephew shall have arrived at the age of twenty-one years, then the one-half of the said residue of my estate to be conveyed and made over to the said issue of the said Lucy, and the other half thereof to be kept invested for my said, nephew, until he shall attain the age of twenty-one years, or for his lawful issue, in case of his death before attaining that age, leaving such issue. In case my said nephew shall die, before attaining the age of twenty-one years, without leaving lawful issue, and before the death of my sister, or before the death of her said daughter Lucy, then upon the death of my said sister and of her said daughter Lucy, leaving issue, to convey and make over the whole of the said residue of my estate to the said issue of the said Lucy. In case of the death of my said sister, and of the death of her said daughter Lucy, without issue, before the death of my said nephew, or in case of the death of such issue of the said Lucy, before the death of my said nephew, then to convey and make over the whole of the residue of my estate to my said nephew, on his attaining the age of twenty-one years; and in case of his death, leaving lawful issue, to such issue; though, if my said nephew shall live, *and attain the age of twenty- ^ one years, before the death of my said sister, and L of her said daughter Lucy, then to convey and make over to him the one-half of the said residue of my estate, on his attaining that age. And in case of the death of my said nephew, before attaining the age of twenty-one years, without leaving lawful issue, and of the death of my said sister, and of the death of her said daughter Lucy, without leaving issue, then to divide the said residue of my estate equally between the said Ralph Clark and Eneas P. Clark. “ It is further my will, that in case of the death of the said James Bogart Clark, before attaining the age of twenty-one years, the $5000 and the accumulation thereof, hereinbefore bequeathed to him, be disposed of as the residue of my estate is above directed to be disposed of; and that in case of the death of the said Elizabeth B. Clark, or the said Virginia Clark, before marriage, and before attaining the age of twenty-one years, the said $5000 and the accumulation thereof, above bequeathed to the one so dying, be disposed of as the residue of my estate is above directed to be disposed of. “ I desire that the investments herein directed to be made by my executors, be made on the security of bonds and mortgages, so far as the same may be practicable; though I do not wish my executors to force the sale of any real estate of which I may die seised, in order to make the investment in that manner. “I hereby invest my executors, hereinafter named, with fuF power and authority to sell and convey any and all real estate of which I may die seised. It is also my will, and I hereby direct that any or all of the property or estate belonging to me at the time of my death, which shall then be invested in lands or real estate, may be continued so invested as long as my sáid executors may deem discreet; and upon the division and conveyance of my estate, or any part thereof, to the legatees or devisees, hereinbefore named, or to any one or more of them, the said land or real estate shall be taken and received by said legatees, at such price or as of such value, as my said executors may deem its true value to be. * 250 1 *“ ^nc*' *n case *ke sa^ Clark and Eneas -* P. Clark shall at any time desire to build upon or improve any of the real estate owned by me in common with them, it is my will, that my estate bear a proportion of the expense of such building or improvements, equal or proportionate to my interest in the property on which such improvements shall be made. “ It is further my will, that of the moneys hereinbefore directed to be invested by my executors, the sum of $50,000 may be invested (if it be desired by the said Ralph Clark and Eneas P. Clark, and can legally be done), in a mortgage upon the undivided share of the said Ralph Clark and Eneas P. Clark, of the real estate in the city of Brooklyn, now owned by the said Ralph Clark and Eneas P. Clark and myself in common. “Lastly: I hereby nominate, constitute and appoint Ralph Clark, Eneas P. Clark and William H. Bradford, of the city of New York, executors of this my last will and testament; hereby revoking and annulling all former wills and codicils by me made. In witness whereof, I have hereunto set my hand and. seal, the 15th day of October, A. n., 1842.” The executors having proved the will and taken upon themselves the execution of the trusts therein declared, the plaintiff filed this bill against the said executors and other parties in interest, to have the will declared void. *The cause was heard upon the pleadings and # ^ proofs before the supreme court, at general term, *- to which it had been transferred under the constitution, when the following decretal order was made: “It appearing to the court, that the several trusts attempted to be created, and the several trust-powers attempted to be conferred, in and by the last will and testament of the testator, Sidney Smith, in the pleadings mentioned, have in view a general scheme for the investment and accumulation of the whole estate of the said testator; and it further appearing to the court, that several of the provisions in relation to the said trusts and trust-powers are contrary to the statutes of this state, forbidding the undue suspense of the power of alienation of real property, and the undue suspense of the absolute ownership of personal property, and the undue accumulation of the rents and profits of real property, and of the income of personal property, by reason whereof such provisions of the said will are illegal and void; and it further appearing to the court, that such illegal and void provisions are material and essential parts of the general scheme and intent of the testator for the investment and- accumulation of his "estate, and that they cannot be separated from the other párts of his said will and be specifically carried into effect, without defeating the testator’s general scheme and intent; and it further appearing to the court, that the first trust in the said will, attempted to be created, so far as the same directs the payment of the yearly sum of $700 and the interest or income arising from the $80,000 therein directed to be invested, to the complainant, and so far as the same directs the payment to her of the interest of the mortgage-money or its proceeds, in said trust mentioned, is not for any of the purposes for which express trusts are by the said statute allowed, and that the said *trust is illegal and void; which illegality and invalidity extends, for the reasons hereinbefore declared, to all the other trusts of the said will; it is, therefore, hereby declared, ordered, adjudged and decreed, that the devise and bequest of all the said testator’s estate, real, personal and mixed in the said will expressed, and the several trusts and trust-powers, intents and purposes for which the same were attempted to be devised and bequeathed, in and by the said will, to his executors in trust, are, and that each of them is, illegal, inoperative and void; and that on the death of the said testator all the real • property whereof he died seised descended to and vested in his heirs-at-law, being said complainant, Nancy Harris, and the defendant, Josiah O. Cady, as tenants in common, in equal moieties, share and share alike, in the same manner as though the said testator had died intestate; the share or moiety of the said complainant being subject to the life-estate therein of her husband, the defendant, Levi Harris, as tenant by the curtesy; and that all the personal property of the said testator belonging to him at the time of his death is personal assets; and that the same, subject only to the payment of his debts and funeral expenses, and the expenses of administration, must be distributed to the next of kin of said testator, according to law.” The order then directed a reference to ascertain the particulars of the estate, and as to a proper provision for the plaintiff out of the personal property; and on the coming in of the report, a final decree was made, in accordance with the decretal order; whereupon, the executors took this appeal. 0’Conor, for the appellants. Butler, for the plaintiff. Beardsley, for Levi Harris. Bidwell, for Josiah C. Cady. [MAJORITY — *G-ardiner, J.] *G-ardiner, J. The testator has devised and bequeathed all his real and personal property to his executors, in trust for the “ uses and purposes and upon the trusts” declared in his will. The first question will be, whether the trusts thus created, viewed as trusts of personal estate, which is the claim of the defendants, are valid. It is manifest, that a leading object with the testator in creating the first trust of $30,000, was, that his property might accumulate for an indefinite period, for the benefit of unascertained persons. The trustees, from the income of the fund, are directed to pay to Nancy Harris $700 per annum, and the same sum to Lucy Harris, her daughter, during her life, should she survive her mother, and “the residue of the interest, to reinvest, from time to time, as an addition to and accumulation of the principal,” during the lives of the mother and daughter above mentioned; and on the death of the latter, “ if the said Nancy shall then be deceased, to make over the said principal *sum of $30,000 and the accumulation thereof to the issue of the *- ' said Lucy.” Accumulations, by our statute, of personal property may be directed by any instrument sufficient to pass such property. First. If the accumulation be directed to commence from the death of the party executing the instrument (which is this case), such accumulation must be made for the benefit of one or more minors, then in being, or in being at such death, and to terminate at the expiration of their minority.” (1 R. S. 774, § 3.) By the 4th section, all directions for the accumulation of interest, Ac., of personal property, other than such as are therein allowed, are declared void. It will be perceived, therefore, that the accumulation directed by the first clause of the will before us, is absolutely prohibited by our statute. The direction to accumulate is not for a longer time than the minority of the persons intended to be benefited thereby and, therefore, void as to the excess of time merely, according to the concluding clause of the 4th section, but the object and purpose of the accumulation are utterly void by the express provisions of that section, inasmuch as they are neither limited to nor do they in any manner refer to “ minors,” for whose benefit alone an accumulation is permitted. As this trust is entire, the annuity of $700 to Mrs. Harris and her daughter cannot be sustained. The testator has directed that $30,000 should be invested, and that the whole income should be disposed of by the trustees, in the manner prescribed. The trust to invest is not divisible, and being void in part, the whole is void. The trust of $30,000 established by the second clause of the will primarily for the benefit of Josiah C. Cady, the nephew of the testator, is also void. The continuance of this trust (which is for the purpose of accumulation) is not for the exclusive benefit of the nephew, who was a minor at the death of the testator, nor was it to terminate on the decease of the beneficiary, but if that event occurred during his minority, and without his leaving issue, the accumulation was to go on, until * i death of Lucy Harris, to whose issue, if any -I survived her, it was to be “ made over” by the trustees; if none survived her, then to the Clarks in equal portions. This trust is not saved by the concluding provision of the 4th section of the statute above mentioned. (1 R. S. 773.) That clause avoids a direction for an accumulation for a longer term than the minority of the persons intended to be benefited thereby, as respects the time beyond such minority, leaving the residue tc stand. But in this case the difficulty is, as we have seen, that the accumulation is not for the sole benefit of minors; the issue of Lucy, who are to take in a certain contingency, may be forty years of age before the death of their mother. I apprehend, that no part of this trust can be supported. The same objections are applicable to the sixth or the residuary - clause of the will. This is also a trust for accumulation, to commence at the death of the testator, and to continue for the lives of Mrs. Harris and her daughter; the fund then to be equally divided between the issue of Lucy and Cady, the nephew of the testator. This trust is void for the reason above suggested in reference to the trust of $30,000. In the second place, the trusts created by the first and sixth clauses of the will are void, because in contravention of the first section of the act, “ Of the accumulation of personal property and of expectant estates in such property.” (1 R. S. 773.) This section provides, “ that the absolute ownership of personal property shall not be suspended, by any limitation or condition whatever, for a longer period than during the continuance and until the termination of not more than two lives in being at the death of the testator,” if the instrument containing the limitation should be a will. The capital of the first trust of $30,000 is limited to the issue of Lucy Harris “ her surviving,” to be made over, with the accumulation thereof, upon the death of the said Lucy, after the decease of her mother. By this limitation, the fund is rendered inalienable, during the lives of Mrs. Harris and her daughter, as neither of them takes any interest in the capital, and as it is contingent, 1st, whether Lucy has issue, 2d, whether they ^survive their mother and grandmother Nancy Harris; it follows, that during the lives of Mrs. L Harris and her daughter, even if the latter should have children, there would be no persons in being by whom the absolute ownership in this fund could' be transferred. Again, if Nancy Harris and her daughter should die, the latter without issue, during the minority of Josiah C. Cady, no interest would vest in the latter, under the limitation to him, until he should attain the age of twenty-one. It is not the case of a legacy vesting in interest, on the dropping of the previous lives, while the possession is postponed until the majority of the legatee, because, by the express directions of the testator, the trustees are to accumulate the income, wntil the legatee attains the age of twenty-one, “when, and not previously, they are to convey and make over the said $30,000 and the accumulations thereof in whatever description of securities or property it may consist,” to the nephew. The intention of the testator that the fund should not vest in interest in Josiah, prior to the time specified, is further manifest, from his direction that in case Josiah should die without issue, before attaining his majority, the fund should be divided between Ralph and E. P. Clark, the ultimate legatees. The fund, in the meantime was to be held by the trustees, in the language of the will, until the “final distribution as therein directed.” The trust then is to continue for more than two lives, and from its nature necessarily suspends the absolute ownership during the whole period. In Child v. Russell (11 Metcalf 15, 24), relied upon by the appellants, the testator gave an annuity to his wife for life, and directed that, after her decease, all his property should be divided among his heirs, according to law, &c. It was held, that each of the heirs, living at the death of the testator, then acquired a right to a distributive share of the estate, and that the division only was postponed, until the death of the wife. The court observes, “that the cases relied upon by those resisting this construction were cases where the property was, in the first instance, given to trustees, to hold for the heirs of *certain persons, and „ ... then to be distributed; here, it was the testator’s own estate in the hands of his own executors, never disposed of in property, but only the distribution postponed.” It will be perceived, that the case cited is distinguished from the present, by the judge who pronounced the decision, by a circumstance (an express trust for distribution) not found in that case, but which exists in the present one, which makes that decision an authority in favor of the respondents. The trust of $30,000 in favor of the issue of Lucy, together with the residuary clause, are therefore void, as violations of the first section of the act against perpetuities. (1 R. S. 773, § 1.) The trust in reference to the principal of the Harris mortgage and its proceeds, mentioned in the same clause of the will, is obnoxious to the same objection. It may continue during the lives of Mrs. Harris and her daughter, and the minority of Josiah C. Cady, and the power of alienation, during the whole period, would be suspended. The trust authorized by the third, fourth and fifth clauses of the will, in favor of James B., Elizabeth R. and Virginia Clark are also void. By the provisions of the residuary clause, if either of these beneficiaries die, &c., before attaining the age of twenty-one, the sums bequeathed to them, respectively, with the accumulation thereof, are to be divided between the issue of Lucy (after her death and the death of her mother) and Josiah C. Cady, when he attains the age of twenty-one, with cross-remainders, &c. These trusts are obnoxious to the objection, first, that the accumulations directed are not for the benefit of minors, exclusively, and secondly, that they suspend the absolute ownership beyond the period allowed by the first section of the statute above mentioned. I have so far considered the provisions of this will upon the supposition that the testator intended that his real property should be converted into personal by his executors and trustees. But by a fair construction of the will, it would seem to be his design, not positively to direct such conversion, but to leave that subject to the discretion of the .executors. He expresses a wish that the investments directed may be made in bonds and * 261 1 *mor*SaSes> but the sale of real estate is not to-1 be forced, in order to effect that object. His property invested in lands is to “ continue to be so invested, so long as his executors may deem discreet,” and is to be divided among the beneficiaries, at prices fixed by the executors, and in the meantime, if real estate owned in common by the testator with the Clarks (which constitutes the bulk of his real property) is improved by his co-tenants, his share is made, by the will, to bear its “ proportion of the expense of such building and improvement.” It is clear, from these provisions, that the testator did not intend to impress a new character upon his estate. His executors were authorized to change real property into personal; or personal into real, at their discretion. Their judgment was to be formed from a state of things existing subsequently to the death of the testator. There is, therefore, no such conversion as claimed by the appellants, and the property must be viewed as it was at the death of the testator. It follows, that so far as the trusts of this will pertain to real estate, they are void, because they are not authorized either by the 3d or 4th subdivision of the 55th section of the statute. (1 R. S. 728.) For the reasons suggested, the decision of the supreme court should be affirmed. Decree affirmed.