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![handle is hein.slavery/ssactsengr0902 and id is 1 raw text is: FARINA V. SILVERLOCK
speculate on whether the testatrix did or did not foresee the event which has
happened ; and therefore the circumstance that the limitation in the events which
happened brought back the property to the testatrix cannot affect my decision. The
most that can be said is, that if the testatrix had foreseen such a result she might
have made a different provision.
Then I have to construe the words next of kin according to the Statutes of
Distribution of Personal Estate, and in the like shares and proportions as if she had
died without having been married. Every word there points dis-[508]-tinctly to a
distribution according to the course of the statutes. It is perhaps a small observation
to make, that she uses the word statutes in the plural; but it is remarkable that the
statute of James provided for letting in brothers and sisters and their representatives
to share with the intestate's mother.
The words of the 22 & 23 Car. 2, c. 10, are, after directing a distribution among
the wife and children, or children's children in case there be no wife nor children, that
the estate is to be distributed then to the next of kindred in equal degree of or unto
the intestate and their legal representatives, as aforesaid.
That statute, therefore, does describe next of kin, and persons taking as their
representatives, as was observed in the argument; the provision of the statute of
James (1 Jac. 2, c. 17) is: Provided also, and it is further enacted that if, after the
death of a father, any of his children shall die intestate, without wife or children, in
the lifetime of the mother, every brother and sister, and the representatives of them,
shall have an equal share with her, anything in the last-mentioned Acts to the contrary
notwithstanding.
This statute seems to treat the brothers and sisters as in an equal degree of
relationship with the mother. However, if that were not so, the subsequent words of
the limitation in this will could not be overlooked. The limitation is not only to
the next of kin according to the statutes, which I think would alone be sufficient to
carry it to the Plaintiff, but then follow the words in the like shares and proportions
as if she had died without having been married. That points to a distribution to be
made at the daughter's death, according to the statute. Using the words next of
kin according to the statutes seems to explain that the testatrix meant by next of
kin, not the ordinary construction of those words, but the persons whom the statute
includes in that description ; [509] and then she adds, in those shares and propor-
tions which the statute directs. I cannot think that the words next of kin in
such a limitation can be construed as they have been where there is no reference to
the statute. The case of Webber's Settlement (17 Sim. 221) certainly proceeds upon a
somewhat singular reason. That was a limitation in a deed of settlement, and the
Court considered that the express limitation to the next of kin could not be altered
by the subsequent words. However, in construing a will, I am not bound by that
decision. I do not now decide more than that one moiety of the property ineluded
in this gift belongs to the Plaintiff.
[509] JOHANN MARIA FARINA v. HENRY SILVERLOCK. June 5, 6, 1855.
[S. C. on appeal, 6 De G. M. & G. 214; 43 E. R. 1214. For subsequent proceedings,
see 1 De G. & J. 434; 44 E. R. 791.]
Trade Mark. Printer. lvjunction.
Where a manufacturer has the exclusive right to use a particular trade mark which
he has been in the habit of procuring to be printed upon paper labels and wrappers,
which he pasted on and wrapped round his manufactures, he may obtain an injunc-
tion upon interlocutory motion against a printer who has made and printed, and is
in the habit of selling, imitations of the Plaintiff's libels to persons, for the purpose
of using them fraudulently, to pass off other goods as those of the Plaintiff, although
the printer himself makes no such use of them.
So also if the Plaintiff alleges that persons bought the labels of the Defendant for
560
1 K. & J. 508.](ViewImageLocal?handle=hein.slavery/ssactsengr0902&div=1&collection=&method=preview&ext=.png&size=3)