Corwin v. Daly. who applied the term "Club House," to superior articles, and particularly to those who applied it to gin, as testified to by the witnesses. But the question arises, what do the plaintiffs intend by "Club House?" If it means only gin manufactured by the distillers at Rotterdam, then it includes all they make; and they may equally give the right of using the trade-mark to any one. If it means all they make of the kind imported by Mr. Campbell, then he must join in the permission to use it; or if it means that imported by the plaintiffs, they must create it as their own trade-mark, and then it is proved to have been a designation well known for twenty years. But if "Club House" could be and was the plaintiffs' trade-mark, the defendants seem to have used every precaution to prevent their commodities from being confounded. The differences already pointed out in the vessels in which they were sold, and the additions to the title were amply sufficient under the authority of the cases cited. Had the question been submitted to a jury which was submitted in Crawshay v. Thompson, (ubi sup.), there can be no doubt what the result would have been. Moreover, the defendants' wares are intended for, shipped to and circulate in the California market alone, where only recently the plaintiffs have followed them. Of course, the latter cannot claim their trade-mark to be prior in time. there; they have not monopolized all the markets in the world, and cannot exclude the defendants there. I may remark, also, that the trade-mark as claimed, differs considerably from that proved. They now limit it to an appellation, without any signs or letters to represent the sound or the idea conveyed. Such signs or letters, if used, may become part of the trade-mark when combined with others; but in such case, the sound they represent, or the sense they convey, ceases to be part of it. For these reasons, I think the judgment erroneous, and it should be reversed, and a new trial had with costs to abide the event. Hutchings v. Baldwin. PIERREPONT, J., concurred in reversing the judgment, and it was ordered accordingly. STEPHEN B. HUTCHINGS and ABRAHAM S. JONES, Executors, &c., of William Osborn, deceased, v. THOMAS BALDWIN and GEORGE BALDWIN. Where one W. O., of the city of New York, by his will, dated October 7, 1841, and proved June 14, 1842, as a will of real and personal estate, after directing that all his debts and funeral expenses be paid, gave all the rest and residue of his estate, real and personal, to his wife E., during her natural life, with power during her life to make leases of the real estate, with the concurrence of the acting executors, provided the leases commenced in possession and were not for more than twenty-one years; and declared such bequest and devise to be in lieu and bar of all dower and other claim on the estate; and then authorized the acting executors to sell all or any of the real estate, absolutely, and convey it by sufficient deeds to the purchasers, and declared that after the sale his said wife should have the same interest in the proceeds of the property sold, as she had before the sale in the property itself; and then directed, that “after the decease of his wife," one-third of his estate, real and personal, should be divided into four equal parts, and gave one of these four parts to A. N., for life, and after her death, to the children of R. B., deceased; one to S. S., for life, and after her death, to her children; one to M. S., for life, and after her death, to her children, and the other to the children of said R. B.; and then disposed of the other two-thirds by giving, "subject to his said wife's life estate," onesixteenth of said two-thirds to his brother H.; one-sixteenth to the children of his sister H.; one-sixteenth to one W. O.; one thirty-second to J.; one thirty-second to A.; and one-sixteenth to N., during her life, and after her decease, to her children; and by then giving one-third of the residue of his estate to M., “absolutely, forever, subject to his said wife's life estate,” and by then giving all the rest and residue of his estate, real and personal, "subject to his said wife's life estate," "absolutely, forever," one-seventh thereof to each" of seven nephews and nieces named in the will; the said will then declaring, that "in case of the death of any devisee or legatee before me (the testator), unless his or her share is expressly for life only, the same shall pass to his or her next of kin as personal estate, as if such devisee or legatee had received the same and it had passed from him or her as personal estate in case of intestacy, but free from his or her debts. Every devise or bequest shall be considered as vested, as personal estate at my decease, but so as to be subject to any prior life estate created by this will, and not to bear interest in favor of any party until the time for payment to such party arrives." Lastly, it appointed the testator's wife, E., executrix, and the defendants, Stephen B. Hutchings and Abraham S. Jones, executors of said will. The last two alone qualified. The widow of the testator died September 27, 1858. 99.66 Hutchings v. Baldwin. 1. Held, that after her death, the said executors could make a valid contract for the sale and conveyance of real estate of which the testator died seized, and the defendants were decreed to specifically perform a contract made by them with said executors, on the 10th of October, 1859, for the purchase of a parcel of such real estate. (Before HOFFMAN and WOODRuff, J. J.) Heard April 12, decided July 7, 1860. THIS is a case agreed upon by the parties, and submitted under the 372d section of the Code. William Osborn, of the city of New York, died, after having made, published and declared his last will and testament, dated October 7, 1841. The provisions of the will are as follows, viz: "First, I direct all my lawful debts and funeral expenses to be paid. Secondly, all the rest and residue of my estate, real and personal, I give to my beloved wife Elizabeth, during her natural life; she to receive the rents, profits, interest and income thereof, during her natural life, for her own use. I also empower her, during her natural life, to make leases of said real estate (with the concurrence or approval of my acting executors if any others should act and be living, otherwise without such concurrence or approval), but so that said leases commence in possession, and be for not more than twenty-one years, and no bonus for the leases be taken; this bequest and devise to her to be in lieu and bar of all dower and other claim on my estate. Item.—I authorize my acting executors, and the survivors of them, to sell all, or any part, of my estate, real or personal, absolutely, and to give sufficient deeds to the purchasers; * such sale not to vacate any previous rocorded lease, executed according to the provisions of this will; and after the sale my said wife shall have the same interest in the proceeds as she had in the property before the sale. Item.-After the decease of my said wife, I direct onethird of my said estate, real and personal, to be divided into four equal parts: one of these four equal parts I give to my wife's sister, Ann Nixon, during her natural life, and after her death, to the children of her brother, Robert Hutchings v. Baldwin. Barnes, deceased, share and share alike forever; one other of those four parts I give to her sister, Sarah Sheldon, during her natural life, and after said Sarah's death, then to her children, share and share alike, forever; one other of those four parts I give to my wife's sister, Margaret Sheldon, during her natural life, and after her death, to her children, share and share alike; and the other of those equal fourth parts I give to the children of my wife's said brother, Robert Barnes, deceased, share and share alike, forever. Item.-The other two-thirds of my said estate, real and personal, I dispose of as follows, subject to my said wife's life estate, namely: I give one-sixteenth part of said two-thirds to my brother Henry; one other sixteenth part I give to the children of my sister Hannah, deceased, forever, share and share alike; one other sixteenth part I give to William Osborn, son of my brother Jotham, deceased; one thirty-second part of said twothirds I give to my brother Jonathan; one other thirtysecond part of said two-thirds I give to my brother Abner; one other sixteenth part of said two-thirds I give to my sister Nancy, during her natural life, and after her decease, to her children, share and share alike, forever. Item.—I give one-third of all the rest, residue and remainder of my estate, real and personal, to my brother Michael, absolutely, forever, subject to my said wife's life estate. Item.-All the rest, residue and remainder of my estate, both real and personal, subject to my said wife's life estate, I give to the following persons, to each his or her share absolutely, forever, namely: one-seventh thereof to each of the three children of my sister Phebe, deceased, named Agnes Labaugh, Sarah Ann Jones and Thomas Whitlock, being children by said Phebe's first husband, John Whitlock; and also, one-seventh to each of the four children of my sister Sarah, deceased, that is to say, to William O. Dunham, Joseph E. Dunham, Amanda Dunham and Emma Dunham. Item.-In case of the death of any devisee or legatee, before me, unless his or her share is expressly for life only, the same shall pass to his or her next of kin as personal Hutchings v. Baldwin. estate, as if such devisee or legatee had received the same, and it had passed from him or her as personal estate, in case of intestacy, but free from his or her debts. Every devise or bequest shall be considered as vested as personal estate at my decease, but so as to be subject to any prior life estate created by this will, and not to bear interest in favor of any party until the time for payment to such party arrives. Lastly.-I constitute and appoint my wife Elizabeth, executrix, and my friends Stephen B. Hutchings and Abraham Jones, executors, of this my will, and they shall not be liable for anything, except each for his own wilful default, but each for his own acts, deeds and wilful defaults, and not for those of the other, nor for joining in receipts. for conformity, without receiving the moneys." The said will was proved, as a will of real and personal estate, before the surrogate of New York, on the fourteenth day of June, A. D., 1842; on which day, letters testamentary were granted by the said surrogate to Stephen B. Hutchings, one of the executors named in the said last will and testament. On the 17th day of December, A. D., 1842, letters testamentary were also granted by the surrogate of New York to Abraham S. Jones, also one of the executors named in the said last will and testament, in conjunction with the said Stephen B. Hutchings, theretofore qualified. The widow of the testator died on or about the 27th of September, A. D., 1858. Letters testamentary were not granted to her, and she left her surviving the said Stephen B. Hutchings and the said Abraham S. Jones. The testator was, at the time of his death, seized of a certain parcel of land, situate in the city of New York, and described in the case. On the 10th of October, 1859, Stephen B. Hutchings and Abraham S. Jones, the surviving executors of Osborn, entered into a written contract with the defendants, for the sale to them, and purchase by the latter, of such parcel of land. By the terms of such contract, if the parties of the second part (the purchasers) failed to comply with the |