Our conclusion therefore is that the by- The facts of the case are these: On Janlaw requiring advertisement of this ordinance uary 13, 1908, Patrick Degnan presented a between first and second readings was dis- verified petition to the surrogate of the counregarded, and was not and could not be sus-ty of Hudson, in which he showed that he pended by the action that was taken, and that the ordinance was in consequence not legally passed, and for that reason must be set aside. was a brother of Nellie Moran, who departed this life intestate September 19, 1907; that she left her surviving her husband, John Moran, and the petitioner, and no other re This conclusion renders it unnecessary to latives; that John Moran died December 22, discuss the other reasons advanced. (75 N. J. E. 197) In re DEGNAN. (Prerogative Court of New Jersey. Dec. 7, 1908.) 1907; that he never took out letters of administration on the estate of his wife, and never reduced her property into his possession; that the only property of which she died possessed was five shares of the capital stock of the People's Building & Loan As 1. EXECUTORS AND ADMINISTRATORS (§ 17*)sociation of the town of Harrison, which GRANT OF LETTERS-PERSONS ENTITLED. The husband of a married woman dying intestate is entitled to administration upon her estate, but if he be dead, or does not apply, then the grant of letters must be to her next of kin, unless there be some personally disqualifying objection to the applicant, and the pro bate court has no discretion in the matter, and cannot ignore the claims of the persons mentioned; their right to administer in the respective cases being paramount. [Ed. Note.-For other cases, see Executors and Administrators, Cent. Dig. §§ 44, 45; Dec. Dig. 17.*] 2. DESCENT AND DISTRIBUTION (§ 52*)CHOSES IN ACTION-RIGHT OF ADMINISTRA TOR. Choses in action, left by a wife dying intestate, pass to her administrator, who may be her husband, but, if another shall administer, such administrator will hold her choses in action, as well as her personalty in specie, after the payment of her debts, in trust for the benefit of her husband if he be living, or for his representative if he be dead; the rule being that the right of the husband to the personal property left by the wife upon her death intestate does not depend upon his conversion or reduction of the same to his own use or possession after her death. were of the value of $800 as nearly as he the matter in controversy. See Kocher's Edward Kenny, for appellant. Joseph M. this is merely formal, and no objection was Branegan, for respondent. WALKER, Vice Ordinary. This is an appeal from an order of the Hudson county orphans' court, made on June 12, 1908, in which it was decreed that the title and interest in certain shares of a building and loan association are part of the assets of the estate of John Moran, deceased, and that the association shall pay, or cause to be paid, or credit the sum due upon them, to the executors of the estate of the late John Moran. made on this score in the court below, nor is it urged here, nor could it very well be made the subject of objection. On April 24, 1908, a memorandum was filed in the Hudson county orphans' court by Judge Blair as follows: "Administration will be given to the next of kin of Nellie Moran. Patrick Degnan." On June 12, 1908, the order appealed from was entered. It entirely ignores (while setting aside) the memorandum of April 24, 1908. The order is in the following words and figures: "Application being made for letters of administration on the estate of Nellie Moran, deceased, and it appearing that Nellie Moran died September 18, 1907, leaving her surviving her husband, John Moran, who died December 25, 1907, leaving a will, which was admitted to probate by the Hudson county surrogate on the 8th day of January, 1908, and it appearing that Ellen Moran was the holder of passbook No. 6660 in the People's Building & Loan Association of Harrison, and that after her death, until the death of John Moran, he had paid the premiums on the said shares, and then [thus] indicated a determination to reduce same to his possession. It is on this 12th day of June, 1908, ordered and decreed that the said right, title, and interest in the building and loan shares, as evidenced by passbook No. 6660 is part of the assets of the estate of John Moran, deceased, and that the building and loan association upon the presentation of a certified copy of this order shall pay or cause to be paid or credit with 'he sum now due to the executor of the estate of John Moran." Returned with the transcript from the orphans' court in this matter is an agreed state of facts which reads as follows: "Nellie Degnan Moran was married to John Moran September 18, 1887, died on September 19, 1907. She had in her own name five shares of the People's Building & Loan Association of Harrison, N. J., which were issued to her September 19, 1889. Those shares are now worth the sum of $616.40, of which $500 is the amount paid for them, and the balance is the accrued interest, viz., $116.40. Her husband, John, died December 22, 1907. He never applied for, nor took out, letters of administration on the estate of his wife. He never reduced her chose in action to possession. She left her surviving at the time of her death no children, no father nor mother, no brother nor sister, except her brother Patrick Degnan, of East Newark, N. J., and she left surviving her no child of any deceased brother or sister. There were no children born of her marriage with John Moran. During the time of her marriage she worked at dressmaking, and earned considerable money in that occupation." The day after the making of the order above recited by the Hudson county orphans' court, Patrick Degnan, the brother and next of kin of Nellie Moran, deceased, appealed therefrom to this court, and prayed that the order of the orphans' court might be set aside, and that letters of administration upon the estate of the decedent might be ordered to be granted to him, and for further or other relief. The order appealed from is erroneous in two particulars: First, because it makes no grant of administration upon the estate of Nellie Moran, deceased; and, second, be cause the orphans' court was without power to adjudicate as to the ownership of the building and loan shares and order paid or Moran, the amount or value of those shares. It is to be observed that each of the parties before the orphans' court of the county of Hudson prayed for a grant of administration upon the estate of Nellie Moran, deceased. The orphans' court act, Revision of 1898 (P. L. p. 724, § 27), provides that, if any person die intestate, administration of the goods, chattels, and credits of such intestate shall be admitted or granted to the widow or the next of kin of such intestate, or to some one of them, if they, or any of them, will accept the same; and, if none of them will accept thereof, then to such other proper person, or persons, as will accept the same. In Donnington v. Mitchell, 2 N. J. Eq. 243, 247, it was held that the husband is entitled to administration because he is entitled to the wife's estate, not as her next of kin, for he is not, strictly speaking, of kin to his wife at all. See, also, Dick. Pro. Ct. Pr. pp. 38, 39. Kocher's Orph. Ct. Pr. p. 61. This was so under the probate practice of England, and is expressly recognized by our orphans' court act. P. L. 1898, p. 780, § 170. In Fielder v. Hanger, 3 Hagg. Ecc. Rep. 770, the Prerogative Court of Canterbury granted administration de bonis non of a feme covert to the representative of the husband, who had taken out administration, and died without fully administering, and remarked that the same grant would have been made if the husband had not taken out administration, unless it could be shown that he had not the interest, but that the property belonged to the wife's next of kin. This practice appears never to have obtained with us, although the rule that a residuary legatee will be appointed in preference to the next of kin has so obtained, notwithstanding the statute. In re Will of Kirkpatrick, 22 N. J. Eq. 463, 466; Booraem's Case, 55 N. J. Eq. 759, 37 Atl. 727. The right of the husband to administration of his wife's estate first arose under the statute of 31 Edw. III, c. 11, "as the next and most lawful friend" of the deceased, which right, as well as the right to the property, the husband has under the statute of 29 Car. II, c. 3, s. 25, notwithstanding the statute of distributions, 22 & 23 Car. II, c. 10. This whole subject is ably and interestingly reviewed in 2 Hagg. Ecc. Rep., Appendix p. 170, in a note by the reporter, but a discussion of the English practice is here unnecessary, because our statute is entirely controlling. As already remarked, our orphans' court act gives the husband the right to administer, and in the absence of a surviving husband, administration must be granted to the next of kin whose right is paramount unless there be some personally disqualifying objection to the applicant. Donahay v. Hall,. 45 N. J Eq. 720, 722, 18 Atl. 163; Cramer v. Sharp, 49 N. J. Eq. 558, 24 Atl. 962. Where there is no husband nor widow, admin kin, if any of them are fit and competent | agreed state of facts, which says that he did and will accept. Sayre v. Sayre, 48 N. J. not do so. In Stoutenburgh v. Hopkins, 43 Eq. 267, 22 Atl. 198. Upon application to the surrogate of Hudson county for administration upon the estate of Nellie Moran, which was the question before the Hudson county orphans' court, the only order which could have been properly made was one granting administration to the next of kin of Nellie Moran, namely, her brother, Patrick Degnan, the appellant, and that should have been the order of the court. The administrator, however, when appointed will be considered in equity with the respect to the residue of the estate, after payment of debts, as trustee, for the husband's representative. This was expressly decided in Donnington v. Mitchell, ubi supra, upon the authority of several cases cited in 2 N. J. Eq. at page 247, and the same doctrine has been held to in this state ever since. In Nelson v. Nelson, 57 N. J. Eq. 118, 36 Atl. 280, the wife devised and bequeathed all of her real and personal estate to her husband, and, after his death, with remainder in certain realty to certain persons, and she, therefore, died intestate as to the remainder of her personalty. In a contest over the same between the next of kin of both husband and wife, Vice Chancellor Emery held, at page 122 of 57 N. J. Eq., at page 281 of 36 Atl. that the right of the husband to the wife's personal property undisposed of by her will does not depend upon his actual conversion of her estate after her death to his own use; and, so far as the same has not been administered or converted by him, the administrator de bonis non of the wife's estate will hold the estate in trust to pay over to the husband's administrator after paying the debts of the wife's estate. It is to be observed that the Hudson orphans' court in the order appealed from adjudged that the deceased husband had done certain acts which indicated a determination to reduce to his possession the choses in action (for such they were) which were left by his deceased wife. It was not necessary for John Moran to have reduced these choses into possession to entitle his estate to the beneficial interest in them, nor does such beneficial interest give his personal representative the right to administer upon the estate of Nellie Moran as against her next of kin, much less does it afford the orphans' court any power to make an order that the People's Building & Loan Association of Harrison should pay, or cause to be paid, to John Moran's executor the sum due upon the shares of which Nellie Moran died possessed. The building association was not before the orphans' court, and the decree as to it was clearly coram non judice. Besides, I cannot understand how the Hudson county orphans' | court could have found that the husband had reduced the choses into possession before he died, which is practically what was N. J. Eq. 577, 12 Atl. 689, Chancellor McGill, Counsel for the appellant contends that, because Mr. Moran did not reduce his wife's choses in action into possession during his | lifetime, the beneficial interest in those choses has passed to the next of kin of his deceased wife; but this position, as already shown, is not tenable. Counsel relies upon Bacon v. Devinney, 55 N. J. Eq. 449, 37 Atl. 144, in which it was held that, when a husband and wife both make payments to meet the dues of building association stock standing in the name of the wife, the presump tion is that his payments were gifts to her. Even so, there is nothing in this view which militates against the husband's right to have his wife's personal property after her death, and in fact in that case Vice Chancellor Grey held, at page 454 of 55 N. J. Eq., at page 146 of 37 Atl., that the husband had a right to the ownership of the stock, subject to the pledge made of it for the debt of the wife created in her lifetime. This is but a reaffirmance of the doctrine that the wife's personal property is subject to her debts, and her surviving husband takes only the net surplusage of her personalty, and this, too, N. J. Eq., at page 456, 37 Atl., at page 146. | 2. HOMICIDE (§ 340*)-WRIT OF ERROR-HARMLESS ERROR-INSTRUCTIONS. On behalf of the appellant reliance is also placed upon Vreeland v. Ryno, 26 N. J. Eq. 160, in which Chancellor Runyon said, at page 162 of 26 N. J. Eq., referring to the common law, that the husband had an interest in the choses in action of the wife, which he could reduce to possession, and when so reduced, they became his absolutely, and on his death went to his representatives, but that such of them as had not been reduced to possession by him at his death still remained hers, and at her death went to her representatives, and not to his. But this case is in entire harmony with the cases in this state which hold that the beneficial interest in the deceased wife's property pass to the husband's representative after his death. In that case, and in Compton v. Pierson, 28 N. J. Eq. 229, 232, Chancellor Runyon simply adverted to the common-law rule that the choses in action of the wife, not reduced into possession by the husband in his lifetime, went to her representatives at her death, and not to his, and this where the wife survived the husband, and in both cases he referred to the fact that, after the death of the wife, the husband, as her administrator, might reduce her choses in action into his possession and hold them jure mariti. It must be conceded that choses in action belonging to the wife pass at her death to her representative. That representative may be the husband, if he survives her; and, if he fails to take out administration, her administrator, after the payment of her debts, holds her personalty in trust for her husband if he be living, or for his representative if he be dead. There is no conflict between the cases. They are all in harmony and in entire accord. The result is that the decree of the Hudson county orphans' court must be reversed, and the record remitted to that court, with instruction to grant administration on the estate of the late Nellie Moran to the appellant, who is her only surviving brother and next of kin. 1. HOMICIDE (§ 340*)—WRIT OF ERROR-HARMLESS ERROR-INSTRUCTIONS. Although the statement in a charge that "murder in the second degree is devoid of the element of the intention to kill" is erroneous, it is not an error that should lead to reversal, if its legal effect, in view of other parts of the charge, was injurious only to the state. [Ed. Note.-For other cases, see Homicide, Cent. Dig. § 717; Dec. Dig. § 340.*] 3. HOMICIDE (§§ 116, 340*)-SELF-DEFENSEWRIT OF ERROR-HARMLESS ERROR-IN STRUCTIONS. protect himself even to the extent of taking The victim of an unprovoked assault may the life of his assailant, when that act is or reasonably appears to him to be necessary in order to preserve his own life, or to save his body from serious harm. Hence a judicial charge that limits such right to what is necessary, and thereby deprives the defendant of the right to have his act tested by the reasonablesity, is erroneous; but such error is not inness of his belief in the existence of such necesjurious to the defendant when his sole defense is that an unprovoked and murderous assault was made upon him, and there are no grounds or circumstances going to the reasonableness of the defendant's belief apart from the grounds and circumstances that go to prove the actual existence of the danger and necessity that confronted him, if his testimony be believed. [Ed. Note.-For other cases, see Homicide. Cent. Dig. §§ 158-163, 715, 716; Dec. Dig. §§ 116. 340.*] Joseph B. Noonan, for plaintiff in error. Pierre P. Garven, for the State. GARRISON, J. The plaintiff in error was convicted in the Hudson county court of oyer and terminer of murder in the first degree. The judgment now brought up by this writ of error is attacked upon three grounds, all of which relate to the charge of the trial court. The first ground of error assigned is that the jury was instructed that "murder in the first degree is where death results from a deliberate, willful purpose to take life, a deliberate intention preconceived beforehand to kill, and that intention executed and carried out." tion of murder in the first degree from which The charge of the trial court upon the questhe foregoing is excerpted was as follows: "The statute concerning murder in this state which is applicable to this inquiry reads as follows: Although the notion expressed by "preconceived" is not so exactly the equivalent of "premeditated" as to render the former a satisfac'Murder which shall be perpetrated by tory substitute for the latter in a definition of the statutory crime of murder in the first de- means of poisoning or lying in wait or by gree, the context in which it occurs in a given any other kind of willful, deliberate and precase may be such that the employment of "pre-meditated killing shall be murder in the first conceived" for "premeditated" in a charge to the jury, although not to be approved, is not an error by which the defendant was injured. [Ed. Note. For other cases, see Homicide, Cent. Dig. § 715; Dec. Dig. § 340.*] degree, and all other kinds of murder shall be murder in the second degree; and the jury before whom any person indicted for murder shall be tried, shall, if they find such person guilty, so designate by their verdict | which they had just before and so repeatedwhether it be murder in the first degree or ly been told was a requisite element of the murder in the second degree.' statutory crime of murder in the first degree, namely, "premeditation." While, therefore, we find in this assignment some ground for verbal criticism, we find none for reversal. The second assignment challenges the accuracy of the statement of the charge that "murder in the second degree is devoid of the element of the intention to kill." That this statement is erroneous is apparent from the consideration that the statute touching the degrees of murder after specifying the attributes constituting murder in the first de "You will, therefore, observe that, in order to constitute murder in the first degree, the killing must be done willfully, with deliberation and with premeditation. The statute says the killing must be willful, deliberate, and premeditated to constitute murder in the first degree, but the statute does not say that such willfulness, such deliberation, and such premeditation shall have existed for any fixed length of time before the act; and therefore all the jury need be satisfied of in order to return a verdict of murder in the first degree relegates all other kinds of murder to gree is that the killing was willful, that it was deliberate, and that it was premeditated, and that such were the conditions of the mind of the accused for a time sufficiently long before the act of killing to allow him to have fully and clearly conceived the design to kill, and that he did conceive such design, and then premeditately and deliberately and willfully carry out that design. It must consist of time sufficiently long for him to have formed the design to kill or not to kill and to make a choice whether he would kill or not kill, and, having deliberately determined to kill, to have executed that purpose. That satisfies the statute. "The law, as I have read to you, states that you shall return by your verdict, if you find the defendant guilty of murder, whether it shall be murder of the first degree or murder of the second degree. "Murder in the first degree is where death results from a deliberate, willful purpose to take life; a deliberate intention preconceived beforehand to kill, and that intention executed and carried out." the second degree of that crime. Hence, inasmuch as murder perpetrated with an intention to kill that was not deliberate and premeditated is a kind of murder, and yet is not murder in the first degree, it follows necessarily from the statutory category that it must be murder in the second degree. This has already been sufficiently pointed out in this court in the cases of State v. Bonofiglio, 67 N. J. Law, 239, 52 Atl. 712, 54 Atl. 99, 91 Am. St. Rep. 423, and State v. Deliso (N. J.) 69 Atl. 218. In the present case, however, in view of other parts of the charge, the effect of this judicial error was injurious only to the state; for the jury had been told that only verdict it would be justified in finding against the defendant was that of murder in the first degree or in the second degree. They had also been told that, unless they found a killing that was deliberate and premeditated, they could not convict the defendant of murder in the first degree. When therefore, they were further told that murder in the second degree was devoid of the element of the intention to kill, they were in effect told that it would be their duty to acquit the defendant unless his criminal act of killing in addition to being intentional was also deliberate and premeditated. This, of course, was too favorable to the defendant, but, the jury having found that the defendant's act was deliberate and premeditated, neither the state nor the defendant were injured by the erroneous statement of the law. The third and last assignment of error to be considered relates to the charge of the court touching the law of self-defense. What the court said was this: From this judicial exposition, which is not otherwise excepted to, the concluding cause, or rather the word "preconceived," is singled out, and made the basis of the argument that the notion expressed by "preconceived" is not the exact equivalent of “premeditated" which is the word used in our statute defining murder in the first degree. Whether this is so or not, or whether the clause in question standing apart from its context would be in all respects a satisfactory definition of murder in the first degree, need not now be decided. It may be that, inasmuch as premeditation as a mental process covers a less extensive field than that "Every man has a right to defend himself covered by "preconception," the broader term when he is attacked. He has a right to de would not in an isolated definition of mur- fend himself to any extent that is necessary der in the first degree be a satisfactory sub- to protect his person and his life. If a perstitute for the narrower one used in the stat- son who is attacked has reasonable grounds ute. That, however, is not the case here. for believing that his life is in danger or his Six times in the single paragraph quoted body is in great danger of being harmed, he from the charge the jury had been told that has a right to defend himself to any extent premeditation was an indispensable element that is necessary, even in some cases to takof murder in the first degree. When, there- ing life, but there must be some reasonable fore, referring to what had just gone before, ground for his belief, and, if he pursues this the broader term "preconceived" was employ-defense, defending himself beyond what is ed, the jury must have understood that what necessary to protect himself, then he loses |