Giles v. Little. On or about the fifteenth of November, 1879, the said Edith intermarried. On the fifteenth of September, 1879, the surviving heirs conveyed the premises in controversy to one Burr and one Wheeler, under whom the plaintiff claims. J. M. Woolworth, for plaintiff, cited 4 Kent, #537; 1 Redfield on Wills, 420; Cole v. Rowlinson, 5 Ld. Rag. 831; Boon v. Cornforth, Ves. Sr. 277, 279; Pond v. Bery, 10 Paige, 140, 152; Chryslie v. Phyfe, 19 N. Y. 344, 348; Smith v. *Bell, 6 Peters, 68; Clark v. Boorman's Executors, 18 Wall. 493; Blake v. Hawkins, 98 U. S. 315; Allen's Ex'rs v. Allen, 18 How. 391; Brant v. Virginia, etc. Co. 93 U. S. 326; Boyd v. Strahan, 36 Ill. 355; Frazier v. Hussey, 43 Ind. 310; Seigwalt v. Seigwalt, 37 Ill. 430; Dunning v. Vandusen, 47 Ind. 422; Jones v. Wood, 16 Pa. St. 25; Owen v. Switzer, 51 Mo. 322; Fowler v. Fisher, 77 N. C. 437. Marquett, Deweese & Hall, for defendant, cited Weir v. Michigan Stove Co. Supreme Court Michigan, October, 1880; Berkert v. Jacoby, 36 Iowa, 274; King v. Ackerman, 2 Blackf. 415; Leiter v. Shepherd, 85 Ill. 247; Dodge v. Moore, 100 Mass. 335; Jones v. Bacon, 68 Me. 34; Murfitt et al. v. Jessup, 94 Ill. 158; Brownfield v. Wilson, 78 Ill. 470; 1 Redfield on Wills, 443, 450. MCCRARY, Circuit Judge.- Was Edith J. Dawson empowered by the will of Jacob Dawson to convey the fee of the premises? The answer to this question depends upon the construction of the will. In its determination very little assistance can be derived from the consideration of adjudicated cases, since testamentary conveyances, unlike most others, present an endless variety of form and expression, and each must be construed very largely by a consideration of its own language and circum stances. Giles v. Little. We have found great difficulty in arriving at a satisfactory conclusion as to the true construction of the will now under consideration, but upon the best consideration we are able to give it, we hold that the widow was authorized to convey the fee, and that the judgment must therefore be for the defendWe base this conclusion upon the following considera ant. tions: 1. This construction is, we think, the only one by which we can give effect to the very comprehensive terms in which the bequest is expressed, to wit: "To my beloved wife, Edith J. Dawson, I give and bequeath all my estate, real and personal, of which I may die seized, the same to remain and be hers, with full power, right and authority to dispose of the same as to her shall seem meet and proper, so long as she shall remain my widow." The whole property was to be hers. The power of disposal was given by words well chosen to express the most unlimited control. The whole instrument must be construed together, and the words just quoted must have their ordinary meaning except in so far as they are controlled by the other terms employed. The concluding words in the above quotation, "so long as she shall remain my widow," do not restrain or limit the power of disposal, but only the time of its exercise. The devisee had unlimited power to dispose of any or all the property bequeathed, provided she exercised it during her widowhood. 2. The condition can have full effect by giving the whole instrument the meaning above stated. The words are, "Upon the express condition that if she shall marry again, then it is my will that all of the estate herein bequeathed, or whatever may remain, shall go to my surviving children, share and share alike." If the language here employed had been such as to convey the idea that the estate bequeathed was to remain for the children, it would have greatly strengthened the position of plaintiff. But on the contrary the language used clearly shows that the testator contemplated the possibility, at least, that the widow might, under her unlimited power of disposal Giles v. Little. during widowhood, sell and convey a part or all of the property, and hence in case of her marriage the children were to receive the estate bequeathed, "or whatever shall remain." It is only by conceding the power of disposal as to part that we can conceive of a remainder, and if she had power to dispose of a part, she had power to dispose of all. Her control was precisely the same over every part of the estate. 3. The construction we have adopted is the only one that will give effect to every clause of the will. As we have seen, no other construction is consistent with the terms of the first clause of the will, which declares the property hers with power to dispose of it as to her shall seem meet and proper. To hold that she took only an estate for years with power to dispose of no more, would be to nullify so much of the instrument as gave her the property "with power, right and authority to dispose of the same as to her shall seem meet and proper." The construction contended for by plaintiff is also inconsistent with some of the language used in the condition, while that we have adopted will give effect to all the clauses. Unless we hold that the power of disposal was conferred upon the widow by the will, we can give no meaning or effect to that clause in the condition which gives to the children, in case of the marriage of the widow, the estate bequeathed “or whatever may remain." As already suggested, this implies that a part may be disposed of, and proceeds upon the theory that there was a power of disposal given by the will. It is insisted that the words, "or whatever may remain," apply only to the personal estate; but an examination of the terms of the instrument will show that there is no room for this construction. It is "the estate herein bequeathed," whether real or personal, or both, "or whatever may remain; " that is, whatever may remain of the estate, that is to go to the children. By recognizing the power of disposal, we can give meaning to this clause, and in no other way can it have any meaning or effect. 4. The construction we adopt seems to us the most reason able. The power to sell the widow's interest during her Miller v. Leggett & Myers Tobacco Co. widowhood would have been so uncertain as to the extent of the interest to be conveyed as to be almost valueless. A title which could be ended the day after it was given by the marriage of the grantor would be too uncertain to be of any value. It is scarcely conceivable that the testator would have been so careful to employ the well chosen words found in the will giving the widow such unlimited discretion as to the disposal of the estate, if he had intended only to empower her to convey an interest that might be at any moment defeated by her marriage. 5. The statute of Nebraska, according to which the will must be construed, provides as follows: General Statutes, p. 300, sec. 124: "Every devise of land in any will hereafter made shall be construed to convey all the estate of the devisor therein, which he could lawfully devise, unless it shall clearly appear by the will that the devisor intended to convey a less estate." This statute clearly requires that construction of the will which favors the theory that the whole estate was transferred thereby. The demurrer to the petition is sustained, and if plaintiff stands upon his petition, there will be judgment for defendant. MILLER and others v. THE LIGGETT & MYERS TOBACCO Co. (Eastern District of Missouri. January, 1881.) 1. ESTOPPEL-JUDGMENT.- A party is bound by an adjudication where he has all the ordinary rights of a litigant with respect to such adjudication." 2. SAME-SAME.- A party who contributes money for the purpose of employing counsel, and carrying on a litigation, under a contract with a party to the record, has the right to take such action in the case as will protect his interests in such litigation. 3. SAME-SAME-PRACTICE.-The validity of a patent having been in part sustained in one circuit, suit was brought in another circuit for infringement, by a party who had contributed to the payment of the counsel who had defended the first suit. Held, that the defendant was estopped by the Miller v. Leggett & Myers Tobacco Co. adjudication in the other circuit, but that the court would not enter any decree based upon that opinion until the conclusion of the litigation in such other circuit. 4. PRACTICE-PRIOR USE.- Evidence of prior use having been introduced in the latter suit, held, that the proper way to proceed would be by motion for a rehearing in the other circuit. In equity. A suit having been brought against Foree & Co., tobacco manufacturers, at Louisville, for infringing the Miller & Worley patent, re-issue No. 8060, for "finishing tobacco plugs," said patent having two claims-one for the process and one for the product- these defendants, with some dozen other tobacco manufacturers, issued a circular to their customers promising to protect them against any suit Miller & Worley might bring against them for dealing in the subscriber's tobacco. It further appeared that the above defendants contributed to the payment of counsel who defended the Foree case, but in all other respects were entirely independent of, and had no connection whatever with, Foree & Co. The evidence showed also that their process was in many essentials different from that practiced by Foree & Co. The product claim was held void. Much new evidence, as anticipating the process, was introduced in this case by both sides, and the case set down for final hearing. Stem & Peck, Beattie & Winchester and George Harding, for complainants. Samuel S. Boyd, for defendant. MCCRARY, Circuit Judge (orally).—We have considered the case of Miller v. The Leggett & Myers Tobacco Co. so far as the question of estoppel is concerned. The suit is brought to determine the validity of certain letters patent belonging to these plaintiffs. The same question was involved in the case of Miller v. Foree, tried in the district of Kentucky, in which there was a decree sustaining the validity of the patent in so |