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so much of the principal of her estate as her husband deemed necessary for his comfort. The subsequent language strengthens this belief. She gives to her granddaughter, at the decease of her husband, "all property remaining," and in case of her granddaughter's death she gives to Mary McGirk "all of said property so remaining"; clearly contemplating, it seems to me, that the property which she left at her decease, and which she gave to her husband to use to such extent as he might deem necessary, might not all remain at the time of his decease, but that a part or the whole of it might be used up and expended by him during his lifetime. In my opinion, William C. Weeden took a life estate in the property bequeathed to him by his wife, with the right to use so much of the principal as he might deem necessary for his comfort. Rose v. Hatch, 125 N. Y. 427, 26 N. E. 467.

I have reached this conclusion not without difficulty, for the intention of the testatrix is not so clear as in many of the cases that have been referred to by the counsel for the administrator. Such cogent clauses as "if any of said real or personal property is left," as in Kendall v. Case, 84 Hun, 124, 32 N. Y. Supp. 553, or "should there be any left," as in Thomas v. Walford (Sup.) 1 N. Y. Supp. 610, do not appear in the will under consideration; yet the care which the testatrix uses in the subsequent gifts to her granddaughter and to Mary McGirk to employ language that imports the gift to them, not of that property the use of which she bequeaths to her husband for life, but only of "all property remaining," coupled with the previous language to which reference has been made, compels my present conclusion.

I appreciate the fact that the use which William C. Weeden made of his wife's bequest has resulted in depriving her granddaughter of the fruits of the grandmother's bounty, and has probably enabled him to save property of his own to bestow in accordance with his own wishes. I have, moreover, attentively considered the case of Owens v. Owens, 64 App. Div. 212, 71 N. Y. Supp. 1108, where the words "if any there be," used by the testator in connection with the disposition of the remainder of his estate after the death of the life tenant, were held to have relation to the possible exhaustion of his estate in the payment of pecuniary legacies for which he had previously provided, and is therefore to be distinguished from the case at bar. As William C. Weeden either used the money which is the subject of the present claim himself, or paid it over principally to one who had kept house for him and nursed him in sickness, the presumption is that the money was expended under the authority given him in the will to use the estate of the testatrix to such extent as he might deem necessary for his comfort. Swarthout v. Ranier, 143 N. Y. 499, 38 N. E. 726.

For these reasons, I hold that the estate of William C. Weeden is not liable to pay over to the administrator with the will annexed of Emma A. Weeden the amount of money represented by the certificates of deposit above mentioned. A decree may be submitted accordingly. Decreed accordingly.

(72 App. Div. 172.)

BOWSKY v. CIMIOTTI UNHAIRING CO. et al.

(Supreme Court, Appellate Division, First Department. May 23, 1902.) 1. LIBEL-PRIVILEGED COMMUNICATION-INFRINGEMENT OF PATENTS.

A signed publication in a trade journal by one engaged in unhairing furs, that he has commenced suit against one engaged in a similar business for infringing patents used in such business which have been sustained by the courts, and that further infringements by such defendant, or by his customers in sending furs to him to be unhaired, will be prosecuted, is privileged, and not libelous, when the facts so stated are true. 2. SAME CONSTRUCTION OF PUBLICATION.

Such publication cannot be construed as a charge that the patents have been sustained in an action against plaintiff, and therefore does not require the submission of the issue of the truth of such a statement.

Appeal from trial term.

Action for libel by Max Bowsky against the Cimiotti Unhairing Company and another. From a judgment on a verdict directed for defendants, the plaintiff appeals. Affirmed.

Argued before MCLAUGHLIN, PATTERSON, O'BRIEN, INGRAHAM, and LAUGHLIN, JJ.

Henry Schreiter, for appellant.
Robert Goeller, for respondents.

PATTERSON, J. This is an action for libel, and on the trial the justice presiding directed a verdict for the defendant on the ground that the alleged libelous matter was privileged, and that justification, which was pleaded, had been fully made out. The circumstances appearing in evidence are the following: The plaintiff was engaged in the business of refining furs, and in that business he used certain machines for unhairing such furs. The defendant corporation was the owner of certain patents for unhairing skins, and the defendant Cimiotti was the president of that company. The patents were No. 383,258, granted to one Sutton, and also a reissue, No. 11,079, granted to one Hedbavny. It seems that the plaintiff was using machines which the defendants considered to be infringements of the patents owned or controlled by the Cimiotti Company, and thereupon, on the 8th of July, 1898, that company caused to be published in a trade newspaper called the Fur Trade Review, and also circulated through the trade, an article or circular in the following words:

"To the Trade: This is to advise you that in a suit instituted by us in the U. S. circuit court for the Eastern district of New York against John Derbohlow for infringing U. S. letters patent No. 536,742, granted to John Sutton, April 2, 1895, a decision was rendered by Judge Lacombe a few days ago sustaining this patent, and granting an accounting and a perpetual injunction against the defendant. We have recently commenced suit against Max Bowsky for infringement of our electric unhairing patent reissue No. 11.079, granted to Hedbavny, May 27, 1890, and of the Sutton patent No. 383,258, of May 22, 1888, both of which have already been sustained by the courts; and we propose to proceed promptly against any further infringers of these or any other patents owned or controlled by us. The validity of our patents having now been repeatedly passed upon by the courts, we hereby notify all infringers that they will be held responsible for treble damages, and that we shall prosecute them to the full extent of the law; and in order that we may not be misunderstood, we desire the trade to take notice that a dealer who causes skins to be unhaired on infringing machines, whether 76 N.Y.S.-30

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on his own machines or by his own workmen, or on machines operated by others, is guilty of infringement.

"Yours respectfully,

Cimietti Unhairing Company."

The plaintiff insists that libelous matter is contained in this circular; that it implied that the plaintiff was an infringer of the letters patent, and that the validity of the letters patent had previously been adjudicated, and that the plaintiff operated machines infringing the letters patent; that the allegations of the circular were false, and were published with the intent to deter those who had previously dealt with, or who would deal with, the plaintiff.

The matter contained in this article is in its nature of a privileged character. The defendant corporation was the owner of these patents, and it was, therefore, interested in the preservation of its rights under them. The communication made to the fur trade was evidently one for the protection of the interest of the corporation, and was perfectly legitimate in its character, unless there were false representations contained in it. A privileged communication is one fairly made by a person charged with some public or private duty, legal or moral, or in the conduct of his own affairs in a matter where his interest is concerned. This definition is adopted in John W. Lovell Co. v. Houghton, 116 N. Y. 521, 22 N. E. 1066, 6 L. R. A. 363. The facts upon which the defendants claim that the article was privileged are uncontradicted, and hence the question of privilege became one of law. On that uncontradicted evidence, every statement contained in the circular is shown to be substantially true. The defendant corporation owned or controlled the patents designated in that circular; an action had been begun against the plaintiff for infringement; the plaintiff was using machines which conflicted with the patents of the defendant corporation; those patents had been adjudged to be valid, as was shown by decrees of the United States circuit court establishing the validity of each of those patents in actions against other persons. The article or circular does not declare that the validity had been established in a suit against Bowsky, but only that he had been sued for an infringement of patents which had already been sustained by the courts, and other parts of the article only refer to what the defendant corporation. would do in the way of prosecuting infringers, and what would be the effect of proceedings instituted against such infringers. All the material matters contained in the articles, therefore, were shown to be true, and justification of the publication was made; and whether it be regarded as a privileged publication or one justified by the facts, the action of the court below in dismissing the complaint was right.

The claim of the plaintiff that the action should have been retained and submitted to the jury because of the alleged falsity of the article in charging that the validity of the patents had been established as against Bowsky is not tenable. The article does not so charge. It is, in substance, merely a statement that the validity of the patents has been established in several suits, and that a suit had been brought against the plaintiff for infringing patents which had already been sustained by the courts. Nothing is said concerning what had been done in the suit against the plaintiff, and the defendants were entirely within their right when they gave this form of notice to the public for the

protection of those patents which had been adjudicated in other actions. to be valid. They were stating the truth and nothing beyond it. The court below was right in directing a verdict, and the judgment should be affirmed, with costs. All concur.

(37 Misc. Rep. 734.)

In re BISCHOFF.

(Supreme Court. Special Term, New York County. April, 1902.)

INCOMPETENT PERSON-RE-EXAMINATION.

The supreme court will not re-examine the question of the competency of a person theretofore duly found incompetent because of an incurable form of insanity, under Code Civ. Proc. § 2343, authorizing such reexamination where it appears that the applicant has become competent, unless a case is made showing a probability of a restoration to competency.

In the matter of the application of Franklin J. Bischoff, who had been judicially declared incompetent, for an order discharging the committee theretofore appointed. Denied.

Cantwell & Moore, for petitioner.

Straley, Hasbrouck & Schloeder, for committee.

SCOTT, J. This is an application by a person who has been judicially declared incompetent for an order discharging the committee heretofore appointed. The motion is based upon the allegation that the petitioner has fully regained his mental capacity. Section 2343, Code Civ. Proc., authorizes such an order when it is made to appear to the court that the applicant has become competent to manage himself or his affairs. When such an application is made, it appeals to the sound discretion of the court; and the presiding judge before whom the application is heard may cause the witnesses to be brought before him and examined in open court, or may refer the matter to a referee or jury, or may hear the application upon affidavits. When, as in the present case, the adjudication of incompetency has been made after a full and exhaustive hearing before a commission and jury, at which hearing the incompetent was present, represented by counsel, and afforded every opportunity to prove his competency, it must be assumed that he was actually incompetent when he was found to be so. fore a reference will be made to a jury or referee, there must be presented to the court at least prima facie evidence that there has been a change in the mental condition of the applicant. It would be an unreasonable burden upon the estate of the incompetent, or, if he have no estate, upon those who deem it a duty to surround him with the protection afforded by the existence of a committee, to order a reexamination as to his competency merely because he wished it, unless it be made to appear to the court, with reasonable probability, that there has been an actual change of mental condition. The evidence given before the sheriff's jury as to the mental condition of this petitioner, and which, as the result shows, was accepted by the jury, indicated that he was suffering from an incurable form of insanity, progressive in character, which might be accompanied by intervals of

Be

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apparent improvement, during which his mental infirmity would not display itself to casual or nonexpert observers. At the same time the character of the mental infirmity attributed by the experts to the petitioner was described as one which might, if all restraint were removed, cause him to do violence to himself or others, or to commit financial irregularities which might even assume a criminal aspect. The history of the petitioner, as disclosed upon the inquisition, shows that he had been concerned in many transactions which could be charitably explained only upon the theory that he was afflicted with the form of mental infirmity attributed to him. Upon the present 'application there are presented the affidavits of the wife and two daughters of the incompetent, who state that they are certain that he is mentally sane, and thoroughly competent and well qualified to manage his own affairs and his person and estate. None of them give any reasons for this belief, and his wife gives no explanation as to what has occurred to change her views as to her husband's competency; her testimony before the sheriff's jury having tended strongly to establish his irresponsibility. It further appears that neither of these affiants has resided with the petitioner since he was adjudicated incompetent, unless they have very recently taken up a residence with him. I cannot regard their affidavits as having any probative force whatever upon the question of the petitioner's present competency. Affidavits are also presented from two physicians who state that they have recently examined the petitioner, and find him to be sane and competent to manage his own affairs. A reference to the testimony taken before the sheriff's jury shows that these same physicians testified to the same effect upon the execution of the inquisition, and that, as the verdict shows, the jury totally disregarded and rejected their evidence. Their opinions are certainly entitled to no greater force now than then, and to accept their affidavits as even prima facie evidence as to the petitioner's present mental condition would be, in effect, to reverse the judgment of the jury as to the weight to be afforded to their views upon such a subject. One of them testified before the sheriff's jury that he did not claim to be an expert on insanity, and did not testify as an expert, and neither of them showed that he had had extensive experience as an alienist. The other affidavits read in support of the motion are all by persons who are not shown to be qualified to express an opinion upon the subject, or to have had sufficient opportunity to form a valuable opinion, even if they possessed expert knowledge on the subject. After a careful reading of the affidavits presented on this motion, and of the proceedings before the sheriff's jury, I cannot say that the petitioner has made out such a case of probable restoration to competency as requires or would justify the court in directing a reexamination of the question of his sanity. The motion must therefore be denied.

Motion denied.