SETTLEMENT of accounts of executor. COLEMAN, S.-The testator, by the codicil to his will, devised one-half of a certain farm to James Smith, in trust to "manage, use and conduct the same, and receive the rents, issues and profits thereof, for the sole use, benefit and support of my said cousin, Francis C. Smith, for and during his natural life," with remainder over to the children of Francis in fee. And by the same instrument he bequeathed to his cousin, Niel T. Smith, "the sum of five hundred dollars, to be paid one year after my decease to him and to his heirs. And I do hereby make and create said legacy as a first charge upon that equal undivided half part of my said farm which is hereby devised in trust to the said James Smith for the benefit of the said Francis C. Smith, and I do hereby authorize, empower and direct my said cousin, the said James Smith, in the discharge of the trust hereby created, to pay to the said Niel T. Smith, or his heirs, the said legacy of five hundred dollars out of the estate hereby and herein before devised to him in trust, and to enable him so to pay and discharge such legacy to charge and encumber said trust estate and property by mortgage or otherwise, in such manner as he may find necessary and convenient. And in case Francis C. Smith shall die before this codicil or my said last will and testament or the trust hereby and herein created shall take effect and become operative, the said legacy of five hundred dollars herein and hereby bequeathed to the said Niel Smith shall (as I do hereby will, order and provide), nevertheless be and remain a charge first in priority upon the undivided equal one half of my said farm which is intended hereby to be devised in trust as aforesaid to the said James Smith, and shall be paid by whomsoever takes and receives said undivided half part of my said farm." The only provision as to the residue or lapsed legacies, under which any claim could possibly be made, is in the will and is a gift of "whatever remains of my personal estate after payment of my debts, funeral expenses and of the legacies herein before given to, etc. Francis C. Smith survived the testator and is still living. Niel T. Smith died August 26, 1888, and the testator died May 18, 1889; hence the legacy to Niel T. lapsed. This is true notwithstanding the legacy is directed to be paid "to him and to his heirs" and although the trustee is directed to pay it "to Niel T. Smith or his heirs," the words "and heirs" and "or heirs" being used simply to denote the quality of the gift, that it was a gift in fee, if the gift should ever become operative. The gift is to Niel T. Smith and it is the payment which is to be made to him "and to his heirs." These words were not necessary for the purpose, it is true, nor was it necessary to have further provided that the legacy be paid one year after the testator's death; and therefore no special significance is to be attached to these additional words in either case. The question now to be determined is who shall receive the benefit of the lapsing. Does it sink into the land for the benefit of the inheritance or does it still remain a charge on the land to be paid either to the executor to be disposed of under the will or to the heir as property not disposed of by the will? The legacy if paid clearly must be paid from the uudivided half of the farm of which Francis is to have the use, rather than only from the interest or use given Francis, for the testator authorizes the trustee to mortgage the trust estate to enable him to pay the legacy and also makes the legacy a charge which must be paid "by whomsoever takes and receives said undivided half part of my said farm." The destination of this legacy seems to depend upon whether it be an exception from the devise of the land or a charge upon that devise. Where the legacy is excepted from the devise, although the legacy lapse, the devisee must nevertheless pay the amount of it to the heir, unless it pass under the will; but if the legacy be a charge, then, it seems, it sinks into the devise; for the reason that in cases of exceptions the devisee never had a complete gift of the whole interest, while in case of a charge the gift is, in the first instance, of the whole, the gift being afterwards modified or charged, and the modification failing the gift remains complete as at first. The devise of the half of the farm to James in trust with remainder over is a complete disposition of that interest in the farm without limitation. The legacy to Niel of $500 subsequently made is independent of the previous devise, but its payment is made a charge upon it, and although the trustee is directed and empowered to raise the amount of the legacy from the land, it was not thereby made an exception from, but was simply a charge upon the devise. In Jarman on Wills, 5th ed., 346, the writer says "with respect to the general question as to the destination of sums charged on real estate which lapse by the event of the legatee dying in the testator's lifetime, little direct authority can be adduced; but as there seems not to be any solid distinction between such cases and those in which the gift of the specific sum is void ab initio recourse is naturally had to the cases on this point," and then he shows, by authorities, that in the last mentioned cases whether the lapsed legacies sink into the land devised depended upon their being exceptions or charges. It is also a rule that "when a legacy, charged on land, is bequeathed on the legatee's attaining twenty-one or any event personal to himself, if the legatee die while the time of payment is in suspense, the legacy sinks into the land for the benefit of the inheritance." 2 Williams on Ex., 1354 (1255). While this case is not of this class, still the reason for the rule scems to be the same. And in Roper on Legacies, 351, the author says "that when the devisee takes the estate as a beneficial gift he will be entitled to all such charges affecting it as lapse or fail." Upon these authorities and the reasoning from them I conclude that the legacy to Niel T. Smith of $500 by his death in the lifetime of the testator lapsed and sunk into the land devised to James Smith in trust, and therefore that said trustee is not required to pay the same to any one. THE PEOPLE, Resp'ts, v. SCHIHIOK JUGIGO, App'lt. MURDER-APPEAL. (Court of Appeals, Filed October 7, 1890.) Defendant was convicted of the crime of murder in the first degree. No exception was taken on the trial. Held, that the evidence was sufficient to establish the commission of the crime, and that a new trial would not be granted. APPEAL from judgment of the court of oyer and terminer in the city and county of New York, convicting defendant of the crime of murder in the first degree, for killing one Mura Commi. Both the deceased and the defendant were Japanese sailors, and the scene of the crime was a sailor's boarding house, kept by one Eymoto. Both were waiting for employment on vessels, and each was anxious to go to sea. A short time before the crime was committed, Eymoto informed the deceased that he had procured a position for him in a vessel which was to sail in a day or two. Defendant became incensed that deceased should obtain the position instead of himself, and quarrelled with the deceased. He was stopped by Eymoto, and left the room, but shortly thereafter returned with a knife, with which he stabbed and killed the deceased, who was lying on a table. Defendant testified that the occupants of the room were engaged in gambling, and Mura Commi was banker, and sat upon the table; that defendant was intoxicated and tottered towards deceased who struck him on the head, causing him to fall; that when he arose, deceased held a hammer which he threatened to strike defendant with; that defendant then put his hand in a chest of tools, and took out a knife; that he did not attempt to kill him, but as he was very drunk, he killed him accidentally. John R. Heinzelman, for app'lt; McKenzie Semple, for resp'ts. PER CURIAM.-The defendant was convicted of murder in the first degree in the oyer and terminer in the city of New York. He has appealed to this court. The record does not contain a single exception, and we are unable to perceive any reason for bringing the appeal except to delay the execution of the judg ment. The evidence established, beyond any doubt, the commission of the crime, and the charge of the judge was fair and properly instructed the jury upon the law needful for their guidance. There can be no pretense for saying that the ends of justice require a new trial, and the judgment should be affirmed. All concur. THE PEOPLE, Resp'ts, v. JOSEPH WOOD, App'lt. MURDER-APPEAL. (Court of Appeals, Filed October 7, 1890.) Defendant was convicted of the crime of murder in the first degree. Held, on the facts, that the conviction was proper and that there was no ground for a new trial. APPEAL from judgment of the court of general sessions of New York city and county, convicting defendant of the crime of murder in the first degree. The indictment charged the defendant with the murder of Charles Ruffin. Both were colored men. The evidence tended to show Ruffin was engaged in a controversy with a timekeeper of the aqueduct in a shanty grocery store at section twenty-one of said aqueduct; that there was a large crowd there; that Ruffin turned around and asked defendant if he was talking to him, and defendant replied he was not; that each said he did not want to have anything to do with the other; that Ruffin advanced toward defendant, who warned him to go away or he would "give him one;" that Ruffin then said he was not afraid of a man with a knife or gun, and that no good would come to a man who should do anything to him; that defendant then drew a revolver and shot him twice, from the effects of which shots he died two days thereafter. Defendant testified that Ruffin threatened to take his life, and, although he had pushed him away, was advancing upon him and drawing a knife when he shot him, and that he did so in self defense. This was contradicted by witnesses for the people. Robt. J. Haire, for app'lt; McKenzie Semple, for resp'ts. PER CURIAM.-The record in this case discloses no exception that is not wholly frivolous. The counsel for the defendant frankly confessed that he had been unable to find an exception which he thought fit for argument, but he submitted the case in the hope that in our examination of it we might find some ground upon which to base a reversal of the judgment. The case has been carefully examined, because it involved human life, but we have been unable to find the slightest reason for disagreeing with the result arrived at in the trial court. By a mere filing of a notice of appeal from the judgment of conviction, the defendant has compelled the county of New York to print the whole record of his case, and it has been submitted. to us by counsel in the hope that we might find that ground for reversing the judgment of conviction which he had been unable to discover. By this process the defendant has also succeeded in having the execution of the sentence delayed several months with no good ground existing therefor. Whether a criminal convicted of a capital crime should have it in his power in all cases to procure such delay in the execution of his sentence is a most serious question, and, as it seems to us, well worthy the careful consideration of the legislature. The judgment should be affirmed. All concur. JOHN RUYTER, Resp't, v. MARY BIRCH REID, Ind. and as Executrix, etc., App'lt.' (Court of Appeals, Filed October 14, 1890.) MORTGAGE-FORECLOSURE-PARTIES-TAX TITLE. The holder of a tax deed cannot, when made a party defendant to an action of foreclosure, defeat plaintiff's title by merely asserting in her answer that she had or claimed a title paramount and superior to him, without showing in some way what that title is and how derived. 'See 31 N. Y. State Rep., 387. MOTION for re-argument. James C. Matthews, for motion; George H Stevens, opposed. O'BRIEN, J.-The defendant's counsel on a motion for a reargument insists that the decision of the appeal in the case was based upon a misapprehension of the facts, and calls our attention to portions of the opinion in which it is stated that there was no finding or proof in the case that Mrs. Reid acquired through her husband or otherwise any title to the land. There is no finding certainly to that effect, nor any request to find. This court cannot look beyond the findings into the evidence for the purpose of gathering facts upon which to reverse a judgment, though it may for the purpose of sustaining it. On further examination no reason is discovered for changing the views expressed in the opinion in regard to the evidence, though perhaps the remarks on that point were unnecessary. It would have been enough to say that there was no finding in the case to the effect that any title to the land was conveyed to Mrs. Reid by her husband. What was said in regard to the evidence was, however, strictly correct. It is true that there is an admission in the case that Mrs. Reid is the sole executrix, devisce and legatee of her husband, but that does not prove that she ever acquired any interest or estate in this particu lar piece of land from him. These facts may be all true, and yet the husband may have died without devising the piece of land in question to his wife. It is quite probable that the admission was obtained for the purpose of proving the fact and intended by all parties as proof for that purpose. If so it is singular that the referee was not requested to make a finding in accordance with the facts. The case, however, was not disposed of upon those questions alone. The plaintiff's right to foreclose his mortgage against any one going into possession subsequent to its execution was not affected by the tax sale unless notice thereof and opportunity to redeem was given to him, or the person from whom he obtained it, and this fact does not appear. Mrs. Reid could not, when made a party, defeat the plaintiff's action by merely asserting in her answer that she had or claimed title paramount and superior to him without showing in some way what that title was and how derived. It would be absurd to hold that a defendant in an action to foreclose can prevent judgment by barely stating that his title is paramount, without procuring proper findings on that question to be made. The motion for re-argument must be denied, with ten dollars costs. All concur. SAMUEL N. BACON, Resp't, v. THE UNITED STATES MUTUAL ACCIDENT ASSOCIATION OF NEW YORK, App'lt.' (Court of Appeals, Filed October 14, 1890.) INSURANCE (ACCIDENT)-MALIGNANT PUSTULE A DISEASE. Defendant undertook to insure deceased against bodily injuries effected. 'Reversing 20 N. Y. State Rep., 204. |