KENDALL V. HARDENBERGH.

911

held sufficiently definite to sustain it, need not be determined. The decree does not purport to prevent the use of the waters of the creek by the appellant in its accustomed manner, which the evidence shows, without conflict, results in no injury to the remaining waters at the place at which, and for the purpose for which, the appellee diverts and uses them. We are of opinion that the appellant has no just cause to complain of the decree as entered, and it is therefore affirmed.

KENDALL v. HARDENBERGH et al. (Circuit Court, S. D. New York.
WILLS-JUDGMENT IN JUDICA1'A. PROBATE BETTING

June 8, 1899.)

ASIDE FUND FOR AN1'WITIEB-REB

'Where, under a will directing the executors, as trustees, to retain in their hands a sufficient amount of the property of the testatrix to produce certain annuities bequeathed by the will, the sole executor who qualified set aside for that purpose certain specific property, and his action in so doing was confirmed by a judgment of the surrogate's court in proceedings' to which aU persons in interest were parties, the right .of the annuitants to be paid their annuities from the income of such property thereby became res judicata, as between all parties thereto; and they could not be deprived of such right by a decree of another conrt. in. a suit to which they were not parties, directing the trustee to transfer a portion of such property to another fund for the benefit of other legatees.

On Final Hearing on Pleadings and Proofs. Hamilton "Wallace, f(.rcomplainant. Robert Thorne, for defendant De Forest. Richard S. Emmet, for defendant New York Life Ins. & TrustCo. LACOl\IBE, Circuit Judge. The complainant is an annuitant un:del' a codicil to the last will and testament' of Blandina B. Andrews, whirh codicil contained tbeprovision:
"I direct that my executors retaiIUl,sufficient llfl:\onnt. of my real and personal estate in their hands to producethel:iaidannuities, or suchportionth.ereof as shall at any time remain payable." , '

}lr. fie Forest, the only executor who qualified, set aside two specific pieces, of property as a proper and sufficient amount to retain for that. purpose; and his .action in sO .doing was confirmed bya judgment of the surrogate's court, whicb decreed that he might l'etainin h.is hands for such purpose these two pieces of property, "or such other investments al"! the said property may from time to time.be converted into." To .the proceeding' ,jn. the surrogate's court all persons in any way interested were parties, and it has never been in any way modified or Between the annuitants and all other parties thereto it is resadjndicata. No one disputes the proposition .that the property. so set apart, and the subsequent investments in which the proceeds oJ the parcel sold were placed, are, and always hav:e, been, abundantly sufficient to produce the annuities. The ,executQr,as trustee, retained thillproperty and these investments nnW some time jp Allgllst, 1894, when he paid out part of the fund to

"
. 94 Jl'EDERAL REPORTER.

'ofllerIbeIieficilu'ies under the.will,:and transferred to himself, as trusteeifOrI allother and· different fund ·created by the will, $33,000 .more of said 'annuitants' fund; It appears that the executor (trustee) thus'parted with so muchiof iihe amiuitants' fund in compliance with a .decree of the state: of New:Yorkmade in an actioll'in which he asked·leave to account and to have a new trustee subsmtuted.', Inasmuch,howeverj'as none of the saidannuitant8 were parties to such action, the decree was powerless to affect their rights. It appears, however, that the balance of the annuitants' fund turned over to the neW trustee, plus the $33,000 thus improperly diverted to some other fund/ and which i'S also' iIi the hands of the new trustee, will be amply Elufficient to produce the annuities. Therefore it will not be necessary to enter upon any discussion as the extent of liability of (trustee) personally;' A decree directing the new pay over to the annuitants the arrears of annuities unpaid. and t(j)retain the entiretund originally set apart for the purpose of producing such annuities, or the proceeds of such fund in Whatever subse1lueilt investments it may no;wbe. placed, will afford abundant reHef, and to such relief the seems clearly entitled. Decree accordingly.
DRAPER v. SKEtRRETT et at (Circuit Court, E. D. PennsylvanIa. June 27, 1899.)
UNFAIR COMPETITION-PRELI¥INARY INJUNQTION.

Although the rule Is well settled that a preliminary injunction against alleged unfair competition will only be awarded where the right Is plain, and the wrong beyond reasonable doubt, when It clearly appears, from the proofs and by compll,rison, that the packages in which defendants inclose and sell their goods are a misleading simulation of those of plaintiff, alld .intentionally a?their use will be granted.
,. ,. "., l I

.

,Tlifa .is a suit in to. enjoin alleged unfair competition in trade. On motion for preliminary injunction. Edward Brooks, Jr.; f()l' complainant. JohnW. Jennings, for . . : .
,

DALLAS, Circuit Judge. This is an application for' a preliminary injunction. Uhas been so frequently said by this court, and by the court ot appeals for this drcuit, that such an injunction should· be awatdedonly where the right is plain and the wrong beyond reasonable doubt, that this matter, at least, must now· be, regarded as settled.' The present'biUprays,fo,l' an injunction more comprehensive than, upon the proofs as now made, and at this stage, the plaintiff :is entitled to; but lam entirely satisfied that the envelope in whiQhthe defendants inclose· and seU their goods. is a misleading si'plUlation of thl\;t· of the plaintiff. To' this extent an examination of the respective envelopes, in connection with the affidavits submitted, is thoroughly conVincing. The only substantial difference between them is in the coloring; and this, in view of the undisputed fact that the color now use<!tby the defendants isthltt Which, at their request, they had 'beenpermiil:ted to use whetiacting under agreement with