Opinion of the Court, per DANFORTH, J. (1.) A photograph had been put in evidence, not only without objection from the defendant, but with his consent, to show the place where the homicide 'was committed. It represented a street scene, and among other houses the one occupied by the deceased in his life-time. Wasmuth, whose testimony is hereinafter referred to, from his own window had seen part of the affair and the situation of the parties. He was present when the photograph was taken, and placed three persons in the highway to represent the position which, according to his recollection, they occupied at the time in question. His testimony as to that fact was objected to, and its admission is assigned as error. The arrangement was not exact, but it was matter of description and served to indicate in a general way the impression left upon the mind of the witness. It aided his oral statement and was an essential and proper explanation of the circumstances attending the taking of the picture and of the picture itself. (2.) The defendant visited the wife of Metcalf the night before the shooting, and remained in her bedroom for several hours; he was there, as on many former occasions he had been, for an illicit purpose, and evidence was given that the overcoat worn that night contained a stocking with a stone in it, described by the defendant as a slung-shot. It is now made a point that the defendant was not permitted to show why he carried it. This, if well founded, might present a serious question, but we have carefully examined the record, especially at the folios referred to by the defendant, and find no evidence of such exclusion. Fifth. That evidence was improperly excluded. (1.) The shooting was from a revolver, and the defendant's counsel, in answering the plaintiff's case, said: "I desire to show, if the court please, that Mr. Frederick Wing assaulted the defendant about July last in the saloon of Edward Wasmuth, in the village of Augusta Centre. That there they had a quarrel, Wing and the defendant, and that Wing threatened the defendant's life. I shall produce an array of witnesses to show that Wing threatened the defendant's life, Opinion of the Court, per DANFORTH, J. and has, repeatedly, since. That the defendant carried the revolver which he had on his person to guard against a threatened assault by Frederick Wing. As bearing upon the question of premeditation and deliberation in the carrying of this revolver, I desire to show the fact in reference to that assault, and of his threats; to show that one of those threats was made about a week before this homicide. I shall show that he purchased his revolver after that fracas." And the trial judge replied: "I do not think the evidence is admissible at this stage of the case, but I will allow you to proceed for the present on the line of the examination which you offer." The defendant's counsel thereupon gave evidence by one witness of threats made by Wing to Jackson, and offered another to testify that he had heard from Wing similar threats. This was objected to and excluded. There was no suggestion that they had come to the defendant's knowledge. Without that they were unimportant, for, if not communicated to the defendant, they could have had no influence upon his conduct. It was, no doubt, competent for the defendant to explain the possession and carrying of the revolver, and he was not prevented by the court from doing so. But, although a witness in his own behalf, he gave no explanation of that fact until, on cross-examination, he was asked by the district attorney as to the occasion, and he explained, that a week before the homicide he had taken the revolver from his drawer and put it in the pocket of his "best pants," to take with him to his mill to see if he "could shoot a rat," and on the day in question he put on "the same pants," the revolver still remaining in the pocket. He made no mention of Wing, or apprehension of danger from any source. Sixth. That there is no evidence of premeditation or deliberation. To us it seems otherwise.* * * * * A jury might fairly say, not only that the pistol was with him as a mode of preparation, but that in the manner of possess ing himself of it when its use was desirable in the perpetration * The omitted portion of the opinion is taken up with a consideration of the evidence upon the question of deliberation and premeditation. Statement of case. of his design, there was manifested such exercise of thought and contrivance as denoted the presence of judgment and reason, rather than the violent and ungovernable passion, either of fear or anger. They have, indeed, said by their verdict that the circumstances of the case and the credible evidence point with irresistible force to a crime committed intentionally and with premeditation and deliberation. Some other exceptions were taken by the learned counsel for the defendant. They are unimportant. No right of the defendant was prejudiced by any ruling during the trial; we find no misdirection on the part of the judge, nor any reason to doubt that the verdict was reached after a fair and full consideration of the case by the jury. We think that it reflects the very truth of the issue and justice requires that it should be made effective. The judgment and conviction, therefore, should be affirmed. In the Matter of the Judicial Settlement of the Accounts of CHRISTOPHER R. ROBERT, as Executor, etc. The will of R. gave his residuary estate to five beneficiaries, his four children and a college, in unequal proportions, two children to whom advances had been made prior to the making of any will by the testator receiving less than the others. The will provided that “any moneys or indebtedness" that should appear upon the testator's inventories or books of account charged as "due him from any of said beneficiaries during his lifetime as an outstanding or unsettled account" at the time of his decease should be considered as forming part of his estate, and a discharge thereof by his executors, should be considered as so much payment and should be deducted from the share of such beneficiary, but without interest, unless some obligation" securing such indebtedness" should be found among the testator's assets upon which interest had been paid or charged, in which case it was declared "the said indebtedness shall continue to be charged." It was also declared that any moneys which should appear in his books charged to either of said beneficiaries "to a furniture or allowance account" should not be debited to Statement of case. such beneficiary on settlement of the testator's estate, but should be "considered as a gift." Held, that the provision directing a deduction for indebtedness contemplated an actual indebtedness which might have been enforced by the testator in his lifetime, and so did not include the advances above mentioned, which were entered in his books and charged to said children as advances, and in his inventories up to the time of the execution of a will as “unavailable assets," although included as part of the estate for distribution;" it appearing that in subsequent inventories they were not so included. (Argued October 17, 1888; decided November 27, 1888.) APPEAL from judgment of the General Term of the Supreme Court, in the first judicial department, entered upon an order made October 21, 1886, which affirmed a decree of the surrogate of the county of New York on final settlement of the accounts of Christopher R. Robert, as executor of the will of Christopher R. Robert, deceased. The surrogate charged to and deducted from the share of the testator's son, Frederick Robert, under the residuary clause of the will, $20,000, and of his daughter Jane R. Corning $50,000. The said legatees excepted to these charges, and the question on appeal was simply as to the legality of these deductions. The provisions of the wili in question are as follows: * * * "Fourthly. All the rest, residue and remainder of my estate, real and personal, whatsoever or wheresoever, as well that I now have as that which I may hereafter acquire and die possessed of or entitled to (except such as is herein otherwise disposed of) I order and direct my executors hereinafter named, or such of them as shall qualify and act, the survivors and survivor of them, to sell and dispose of, and after disposing of my said real and personal property, and, deducting from the proceeds thereof all necessary expenses and charges, also the thirty thousand dollars bequeathed my wife as before mentioned, to divide the remainder into fifty equal parts; and if my son Christopher R. Robert, Jr., be then living, to pay over to him twelve equal parts thereof, but, in case of his death prior to such distribution, upon such Statement of case. distribution to pay over the said twelve parts to his lawful issue in equal portions, share and share alike. "And if my son Frederick Robert be living at the time of such distribution, to pay over to him eleven of the said equal parts, but, in case of his death prior to such distribution, upon such distribution to pay over the said eleven parts to his lawful issue in equal portions, share and share alike. "And if my son Howell W. Robert be living at the time of such distribution, to pay over to him twelve of the said equal parts, but, in case of his death prior to such distribution, upon such distribution to pay over the said twelve parts to his lawful issue in equal portions, share and share alike. "And if my daughter Jane R. Corning be living at the time of such distribution, to pay over to her five of the said equal parts, but, in case of her death prior to such distribution, upon such distribution to pay over the said five parts to her lawful issue in equal portions, share and share alike. "And upon such division to pay over to the trustees of Robert College of Constantinople' ten of such equal shares, which with the other bequests herein made to the said trustees of said college are for the endowment fund of the said college, and the money derived from the said bequests is to be invested in bond and mortgage on improved productive real property in fee simple, in the city of New York or Brooklyn, worth double the amount loaned at a low valuation — the income only to be used for the general uses and purposes of the said college. "In case the said college shall be discontinued, then I will that the said bequest, as well as any other bequests herein made to the said college shall be applied by the said trustees of said college, in such manner as they may deem best for the general purposes of evangelical and Protestant education among any of the nationalities of the Turkish Empire. 66 Sixthly. All moneys or indebtedness, which shall appear upon any inventory or ledger or books of account, kept by me, or under my direction, charged as due to me from him, or either of my said children, or Robert College of Constanti |