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same is also true of Maugham v. Mason,1 except that the land was there charged with legacies only. In Attorney General v. Holford,2 the correct view would seem to have been that as all the purposes of the sale failed, the trust for conversion also failed, and, as there was no equitable conversion of the land, that consequently the equitable ownership of the land, the legal ownership of which vested in the trustees, either descended to the heir, or passed to the residuary devisee. Under no circumstances can a residuary devisee, as such, acquire a right to have land sold, and to receive the proceeds of the sale, or any part of such proceeds. In Jessopp v. Watson there was no equitable conversion, as the purposes of the sale all failed, except the payment of debts, legacies, and annuities, and the latter constituted a mere charge.5 For the other reasons already given also, there was no equitable conversion as to the testator's heir, and, therefore, the latter took the land as land. In Phillips v. Phillips it was erroneous to hold that the one-fifth of the land the produce of which was intended for the deceased brother, went to the testator's next of kin; if for no other reason, because there was no equitable conversion of that portion of the land. The same is also true, mutatis mutandis, of Fletcher v. Chapman. In Flint v. Warren 8 it seems clear that there was no equitable conversion of the land into money, as the will merely charged the land with the payment of the testator's debts and legacies in aid of the personal estate, and it appeared that the latter was abundantly sufficient to pay them all.9 In Shallcross v. Wright,10 also, the land was merely charged with debts and legacies, and, therefore, there was no equitable conversion of it into money. In Hatfield v. Prime 11 the testator's heir took as land that portion of the land the produce of which had not been effectively disposed of, there having been no equitable conversion of it into money, nor, indeed, any equitable conversion of of the land as to the testator's heir. In Wilson v. Coles 12 any

by deed, for the mere purpose of satisfying a charge or charges thereon, never causes an equitable conversion. And see 18 HARV. L. REV. 83-93.

1 1 Ves. & B. 410. See also 18 HARV. L. REV. 20, n. 3.

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there was no equitable conversion of the land, except as to the wife, and even, as to her, there was an equitable conversion for her life only. On the testator's death, therefore, the land immediately descended to his two co-heirs, subject to the wife's life estate, and when one of the co-heirs died, her share went to her heir, and was land in the hands of the latter until its actual sale, when it became money for all purposes.1 In Attorney General v. Lomas,2 no right was created in any one to have the land sold, and, therefore, there could be no equitable conversion. Nor could there be any equitable conversion in favor of the testator's heir, even if there were one in favor of others. In Hamilton v. Foote 3 the testator's land descended at her death to her heir, subject only to the life estate devised to the testator's sister, and to the two legacies of £500 each. There was no equitable conversion of any of the land as to any person, nor could any of the land be sold, if the heir chose to pay the two legacies, nor could any more be sold, under any circumstances, than enough to pay those legacies. In In re Richerson there was no equitable conversion of the testator's land, except as to the tenants for life respectively, and, even as to them, only to the extent of their respective life interests. At the testator's death, therefore, the land descended to his sister and heir, subject, however, to the life interests and to the right of the respective tenants for life to have the land sold. As to so much of the land as was actually sold between the testator's death and the death of the sister, the latter's title to the land was devested by the sale, she acquiring a title to the purchase-money instead, and, on the death of the sister, so much of the land as remained unsold descended to her heir, and the produce of what had been sold devolved upon her personal representative, and, as to so much of the land as was sold between the sister's death and the death of the surviving tenant for life, the title of the sister's heir to the land was devested, and he acquired a title to the purchase-money instead. In Wall v. Colshead, the purposes of the sale having all failed, there was no equitable conversion of the land, and the latter passed, at the testator's death, to his residuary devisees, who took it as land, though subject to the life interests of the tenants for life. So also, in White v. Smith, the purposes of the sale all failed, and

1 See 18 HARV. L. REV. 6.

8 Ir. R. 6 Eq. 572.

5 2 De G. &. J. 683. See also supra, p. 22.

2 L. R. 9 Exch. 29.

4 [1892] I Ch. 379.

6

15 Jur. 1096. See supra, p. 22.

hence the land descended to the testator's heir, who took it as land, though subject to legacies. In In re Taylor's Settlement,1 a testator devised his land in trust to be sold, and its produce divided among his seven children, and one of the children having died before the testator, it was properly held that the one-seventh of the land, the produce of which was intended for the deceased child, went to the testator's heir, but improperly held that the latter took it as money.2

Sept. 1905.

C. C. Langdell.

1 9 Hare 596. Bagster v. Fackerell, 26 Beav. 469, is subject to the same observations as Taylor's Settlement, In re. In that case, however, it would seem, from the length of time that had elapsed since the testator's death, that the land must have been actually sold, in which case, of course, the heir would take the money as money. Compare also Ackroyd v. Smithson, supra, p. 26, and Smith v. Claxton, p. 26. 2 In Clarke v. Franklin, 4 Kay & J. 257, where a trust for converting land into money was created by deed, but all the purposes of the trust failed ab initio, except the payment of six sums of 50%. each, and one sum of 20 l., to persons named, it was held that the equitable interest in the land resulted immediately to the grantor, subject only to the payment of those seven sums, but that the same was money in his hands, the land being converted into money in equity the moment that the deed was delivered. It was, therefore, held that the grantor, by directing the land to be sold, i. e., exchanged for money, had immediately converted it into money, so that it became money in his own hands. This, however, was not merely a complete non-sequitur, i. e., a thing which did not in the least follow from the direction to sell the land, but it was a legal impossibility. On the delivery of the deed the legal title to the land passed to the trustee, the equitable interest remaining in the grantor; and at the same moment, according to the decision, there was a transmutation of this equitable interest from land into money. Such a transmutation could be made, however, only by equity itself, and equity could make it only for an adequate cause, and it was not pretended that any cause existed. Moreover, such a transmutation would be entirely independent of the direction to sell the land, and inconsistent with it. It may be added that the seven persons, each of whom was to receive a small sum out of the proceeds of the sale, had nothing to do with the equitable conversion, having merely a charge on the land, for the amounts coming to them respectively.

PATENTABLE PROCESSES.

HE law of patents is purely statutory. In this country the

THE

right of an inventor to a patent or grant, by which alone this species of property is created, depends entirely upon the provisions of the acts of Congress, passed pursuant to its constitutional power, as interpreted by the decisions of the federal courts.2

Under this power Congress can grant a patent only to an inventor, and to him only for his own discovery and for a limited time; but, subject to these limitations, its power to legislate upon the subject of patents is plenary, and it may refuse all privileges whatsoever or bestow them for such classes of inventions and on such conditions as it may be pleased to prescribe.3

A process, by that name, never has been made the subject of a patent in any of our statutes. But every patent act has made provision for the grant of a patent to any one who has invented or discovered any new and useful“ art,” as well as “machine, manufacture, or composition of matter," or any new and useful improvement thereof; and a process, it is well settled, is included under the general term "useful art," or rather is an art, the two terms being practically synonymous.

As defined by Mr. Justice Bradley, speaking for the Supreme Court in the case of Cochrane v. Deener, "A process is a mode of treatment of certain materials to produce a given result. It is an act, or a series of acts, performed upon the subject-matter to be transformed and reduced to a different state or thing. If new and useful, it is just as patentable as is a piece of machinery. In the language of the patent law, it is an art. The machinery pointed out as suitable to perform the process may or may not be new or patentable; whilst the process itself may be altogether new, and produce an entirely new result. The process requires that certain things should be done with certain substances, and in a certain order; but the tools to be used in doing this may be of secondary consequence."

1 Art. I. § 8, clause 8.

2 Brown v. Duchesne, 19 How. (U. S.) 183, 195.

Blanchard v. Sprague, 3 Sumn. (U. S. C. C.) 535, 541; McClurg v. Kingsland, I How. (U. S.) 202, 206.

4 94 U. S. 780, 788.

This definition was further elaborated by the same distinguished judge in Tilghman v. Proctor,1 where, after reviewing several prior decisions, he quotes, from the opinion of Mr. Chief Justice Taney in the case of O'Reilly v. Morse, the statement that "Whoever discovers that a certain useful result will be produced in any art by the use of certain means is entitled to a patent for it, provided he specifies the means," and declares that this clear and exact summary of the law affords the key to almost every case that can arise. "But," he explains, " everything turns on the force and meaning of the word' means.' It is very certain that the means need not be a machine, or an apparatus; it may, as the court says, be a process. A machine is a thing. A process is an act, or a mode of acting. The one is visible to the eye, an object of perpetual observation. The other is a conception of the mind, seen only by its effects when being executed or performed. Either may be the means of producing a useful result." It is only where apparatus is required and is not sufficiently obvious to suggest itself to a person skilled in the particular art, that the patentee of a process is required to describe some apparatus by which it can be practically carried out.3

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In the Telephone Cases, which involved the patentability of Bell's claim for a method of, and apparatus for, transmitting vocal or other sounds telegraphically, "by causing electrical undulations, similar in form to the vibrations of the air accompanying the said vocal or other sounds," the court held, in an opinion written by Mr. Chief Justice Waite, that Bell had both discovered a new art and invented a machine by which it could be practiced and so made useful; and that the law unquestionably gave him the right to a patent therefor as discoverer, for the art or process of transmitting speech he had found, and as inventor, for the means he had devised to make his discovery one of actual value. The court again observed that a patent for an art does not necessarily involve a

1 102 U. S. 707, 728. This case was decided by a unanimous court, after most careful consideration, and reversed a prior decision upon the same patent, in Mitchell v. Tilghman, 19 Wall. (U. S.) 287, where it was held, Justices Swayne, Strong, and Bradley dissenting, that the patent was limited to a process practiced by means of the particular apparatus pointed out in the specification, and, as so limited, had not been infringed.

15 How. (U. S.) 62.

2 Approved and applied in New Process Fermentation Co. v. Maus, 122 U. S. 413, 427.

4 126 U. S. 1, 532.

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