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THE ALBANY LAW JOURNAL.

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Blood appears to mischief to the person or the property or to the ation, and there is good name, was of sufficient importance to destros t the devisor con- | the threatened party's freedom, the law would not the decree of the enforce any contract which he might be induced by lat if the devisees such means to make.' 1 Pars. Cont. *393-395; 1 he will to enable | Chit. Cont. 269–273; Silliman v. U. S., 101 C. S. rit, the same de- 465. The first part of the foregoing quotation is a ignation of those fair statement of the more rigid rule, the latter of

just as indefinite | the more lenient rule, in respect to duresa. De-
in the will. We fendant's answer is insufficient under either rule.
howing an inten. In most, if not all

, of the reported cases, where a
) the persons ap- party has been relieved from liability on a contract
lled 'trustees,' or on the ground that the same was obtained from him
cept those whom by duress, or threats amounting to duress, it will be

by the descrip-ound that the duress or threats were not only up-
s and sisters, of lawsui, but that the contract thus obtained was es-

Blood, who are sentially anjust toward the party seeking relief from
y authority at the it. Adam: 5. Schiffér, 11 Colo. 30-33; 17 Pac. Rep.
ary to enter or. a 21; White v. neylman, 34 Penn. St. 142; Calling v.
es and trusts and Westbury, a Bar, 211; Craford v. Cato, 22 Gs. 594;
urt can be called 'yn v. Glenn, 41 Mich. 112; Scholey v. Mumford,
se is valid, there 60 N. Y. 498. In this case the answer avers that

ARGUED before. Alveg. Podo

, and Bryan, MeSherry,

ir devise, and to defendant and his partner were threatened with e or devisee com- suit by plaintiffs "inless defendant should execute ate named or de- the note. But it Iso appears that their debt to

This court has plaintiffs was much greater than the amount of the ary association in note demanded; hence it was lawful for plaintifs ass no title (.18- to sue if they could not otherwise obtain a satisfac

Gil. 260); that tory settlement. The property of defendant's firm a its firm name was also threatened with attachment. Presumably

Mendenhall, 18 it was liable to attachment; at least the answer o8, 26 Minn, 201; does not negative such liability. It is alleged that

in the last case plaintiffs promised to give credit to defendant's firm. n name contains The answer shows that plaintiffs did give such le title may vest credit. The answer does not however show the er. s that where the tent of the credit promised, either as to time or ice, and there is amount; hence no legal or reasonable ground ap3 no such element pears for defendant's belief that plaintiffs would devisees are no give all the credit his firm desired. The answer vers of a certain avers that defendant feared that his business trould

of the same stroke or poison in another county, within presented on demurrer to the third and fourth counts one year thereafter, the offender shall be tried in the

of the indictment is one in regard to which some court within whose jurisdiction such county lies where the

doubts, it would appear, were entertained in the early stroke or poison was given." Held, that where the blow

These doubts seem was struck in Maryland, and death ensued in Pennsyl- days of the English common law. vania, the venue in an indictment for murder was prop

to have had their foundation in certain maxinis and erly laid in the county where the blow was struck.

practice that originally obtained in respect to the Where a sick juror had been separated from his fellow jurors venue for the trial of facts, the reason for which has

during a recess of the court, before verdict, and it ap- long since ceased to exist; it being supposed, in the peared that he had not been tampered with, a motion to early periods of the English law, that it was necessary discharge the jury was rightly overruled.

that the jury should come from the vicinage where the matters of fact occurred, and therefore be better quali

fied to investigate and discover the truth of the traus. , Page, JJ.

action than persons living at a distance from the scene C. C. Crothers, Rob. C. Thackery and G. Y. Mayna

could be. Hence the venue was always regarded as a dier, for appellant.

matter of substance, and where, at the common law,

the commission of an offense was commenced in one John P. Poe, Atty.-Gen., for the State.

county and consummated in another, the venue could

be laid in neither, and the offender went altogether ALVEY, C. J. This appeal, taken under the act of

unpunished. And even in the case of murder, if the 1892 (cbap. 506), enacted as section 77, article 5, of the

mortal wound was inflicted or poison administered in Code, is from the final judgment of the court below,

one county, and the party died in consequence of the sentencing the appellant to death on a verdict of mur

wound or poison in another, it was doubted by some der in the first degree. There are two questions raised. whether the murder could be punished in either The first is on demurrer to the indictment, in respect county, for it was supposed that a jury of the first to the jurisdiction of the court to try the prisover be- could not take cognizance of the death in the second, cause of supposed defect of venue as to the commission and a jury of the second could not inquire of the of the crime, and the second is presented by bill of ex

wounding or poisoning in the first, and so the felon ception, as to the supposed illegal separation of the

would escape punishment altogether. 1 Chit. Crim. jury during the progress of the trial.

Law, 177. This doubt was founded in a mere techni. (1) As to the demarrer to the indictment. The in- cality, and savored so much of a senseless nicety that dictment contains four counts. There is no question it was deemed a reproach to the law, and to remove made upon either the first or second count, but the all doubt, and to fix a certain venue for the trial of third and fourth counts are supposed to be obnoxious the crime, the statute of 2 and 3 Edward VI was passed, to the objection taken to them by demurrer. The de- and after reciting in a long preamble the great fuilmurrer was overruled, and the prisoner then pleaded ures of justice which arose from such extreme nicety, not guilty, upon which he was tried and convicted. that statute enacted that in cases of striking or poisonThe third count of the indictment charges that the

ing in one county and death ensuing in another the ofmortal blow was inflicted by the prisoner on the de- fender could be indicted, tried and punished in the disceased in Cecil county, Md., but that death, in conse- trict or county where the death happened, as if the quence of the wound, subsequently ensued in the city whole crime had been perpetrated within the boundof Philadelpbia in the State of Pennsylvanin. In the ary of such district or county. And by the subsequent language of the indictment it is charged that the ac. statute of 2 George II, chapter 21, it was enacted that, cused, “on the 1st day of February, 1891, with force where any person feloniously stricken or poisoned at and arms, at Cecil county aforesaid, in aud upon one any place out of England sball die of the same in Eug. George Ditmar, in,” etc., “then and there being, land, or being feloniously stricken or poisoned in feloniously, willfully and of bis malice aforethought, England, shall die of such stroke or poisoning out of did make an assault," etc., "and, with a certain stick," England, an indictinent thereof, found by the jurors etc., “him, the said Ditmar, did then and there, one of the county in which either the death or the cause fatal wound; and of which said mortal wound the said of death shall respectively happen, shall be as good and Ditmar, on and from the said 1st day of February, in effectual in law, as well against principals and acces. the year aforesaid, until and upon the 4th day of sories, as it the offense had been committed in the March, in the year aforesaid, at the county and city of county where such indictment may be found. The Philadelphia, in the State of Pennsylvania, then and principles or provisions of these two English statutes there did languish, and, languisbing, did live; on are not exactly consistent the one with the other, but which said 4th day of March, in the yenr aforesaid, at the statutes of 2 and 3 Edward VI, chapter 24, is not the county and city last aforesaid, he, the said Ditmar, now applicable or in force in this State, whatever may of the mortal wound aforesaid, died." The fourth hare been the case prior to our own act of 1809 (chap. count, charging the felonious assault and wounding as 138, $ 17), and the statute of 2 George II, chapter 21, in the third, ditfers from that count in this: that in was never applicable here, as found by Chancellor the fourth count it is charged that the mortal blow | Kilty in his Report on the English Statutes published was inflicted on the deceased by the accused at Cecil in 1811. county, Md., with a club, "and that of this mortal By section 278 of article 27 of the Code, codified from wound said Ditmar, on and from the said 1st of section 17 of the act of 1809 (chap. 138), it is provided February, in the year aforesaid, to the 4th day of that, “if any person be feloniously stricken or poi. March, in the year aforesaid, languished, and lan- soned in one county, and die of the same stroke or guishing, did live, as well at and in the county afore- poison in another county, within ove year thereafter, said as at and in the county and city of Philadelpbia, the offender shall be tried in the court within whose in the State of Pennsylvania, then and there did laia jurisdiction such county lies where the stroke or poiguish, and, languishing, did live, on which said 4th day 800 was given, and in like manner an accessory to murof March, in the year aforesnid, at and in the county | der or felony committed shall be tried by the court and city of Philadelphia aforesaid, to-wit, at and in within whose jurisdiction such person became accesCecil county aforesaid, the said Ditmar, of the mortal sory." This statute, as will be observed, conforms wound aforesaid, died."

neither to the Statutes of 2 and 3 Edward VI nor to The death occurring in Philadelphia as the result of that of 2 George II; but it is, as we think is manifest, the mortal wouud inflicted in Maryland, the question simply in confirmation or declaratory of the common

and subject to be ruined, his property sacrificed and his busines
me of his death, reputation and standing injured, if he should be
bers are, or how sued by plaintiffs, and that thus he would be sub-
tif ed. Title to jected to great pecuniary loss and mental anxiety.
iss by an instru- All these things are but the common ordinary inci.
o take are indi. dents resulting from over-indebtedness on the part
a manner. The of those engaged in mercantile and other business
erty." pursuits. It is not unlawful for a creditor to de-

mand and secure from his debtor a promissory note
art of Colorado, for a hona fide debt, under threat of suit if such note
a creditor

may be not given; and a debtor cannot avoid the pay-
r a promissory ment of a note merely on the ground that the same
t of suit, and a was obtained by means of such a threat. Jackom r.
{ a note merely Allen, 4 Colo. 263; Prichard v. Sharp, 51 Mich. 432;
$ obtained by Peckham v. Hendren, 76 Ind. 47.
t said: The
by a standard

CRIMINAL LAW-MURDER-VENUE-SEPA-
does not exist

RATION OF JURY.
contract under
where such a

MARYLAND COC'RT OF APPEALS, NOV. 17, 18:02

STOUT V. STATE.
wful imprison. The Code, article 27, section 278, provides that "il any person

be feloniously stricken or poisoned in one county, and die

s wrong; as of

at, whether of

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law. This, we think, is made clear upon examination where the fatal stroke was given, and the place of the of text-writers of high avtbority, and by judicial de- consequent death was quite immaterial. The author cision of courts entitled to great weight in the deter- ity of the opinion of Lord Hale so plaiuly indicated in mination of such a question, and if this provision of the passage from bis work just quoted bas been fully our Code be simply declaratory of the cornmou law, recognized by subsequent writers of high repute. as we suppose it to be, the same reason and principle Thus iu 2 Hawkins' Pleas of the Crown), page 120, secequally apply to the case where the mortal blow or tion 13, the author says: " It is said by some that the poison is given in any county in this State, and the death of one who died in one county of the wound party so stricken or poisoned shall, in consequence of given in another was not indictable at all at common the blow or poison, die out of the State, within the law, because the offense was not complete in either year and a day after the blow given or poison admin. county, and the jury could inquire only of what bapistered, as to the case provided for by the terms of the pened in their own county. But it hath been holden statute.

by others that, if the corpse were carried into the In such case it is the law of Maryland that is vio- county where the stroke was given, the whole might lated, and not the law of the State where death may be inquired of by a jury of the same county." Aud so happen to occur. By the felonious act of the accused in 1 East's Pleas of the Crown, page 301, that rery not only is there a great personal wrong inflicted upon learned and accurate writer says: " Where the stroke the party assaulted or mortally wounded while under and death are in different counties, it was doubtful at the protection of the law of the State, but the peace common law whether the offender could be tried at all, and dignity of the State where the act is perpetrated the offense not being complete in either, though the is outraged, and though death may not immediately more common opinion was that he might be indicted follow, yet if it does follow as the consequence of the where the stroke was given, for that aloue is the act of felonious act within the year, the crime of murder is the party, and the death is but a consequence, and complete. In inflicting the mortal wound then and might be found, though in another county, and the there the accused expends his active agency in pro- body was removed into the county where the stroke ducing the crime, no matter where the injured party was given." It is not necessary that we should cite may langujsh, or where he may die, if death ensues other text-writers upon this subject; those we have within the time and as a consequence of the stroke or cited sufficiently indicating the state of the English poison given. The grade and characteristics of the common law in regard to the question here involved, crime are determined immediately that death ensues, though expressed with the doubts formerly entertained and that result relates back to the original felonious hy some. wounding or poisoning. The giving the blow that The question however does not rest on the authority caused the death constitutes the crime

of text-writers aloua; judicial decisions are not wantLord Coke seems to bave been responsible to a con- ing upon the subject. In the case of Rex v. Hargrave, siderable extent for the maintenance of the doubt that 5 Car. & P. 170, tried before Mr. Justice Patteson in was formerly entertained upon this subject. In 3 1831, an indictment for manslaughter charged tbat A. Iust., at page 48, founding his text on the preamble gave the deceased divers mortal blows at P., in the to the Statutes of 2 and 3 Edward VI, he says: “And county of M., and that the deceased languished and before the making of the Statutes of 2 Edward VT if a died at D., in the county of K., and that the prisoner man had been feloniously stricken or poisoned in one was then and there aiding in the commission of the county, and after bad died in another county, no suf- felony. Upon objection to the sufficiency of the inficient indictment could thereof bave been taken in dictment, the learned justice, in overruling the objeceither of said counties, because by the law of the realm tion, said: “The giving of the blows which caused the jurors of one county could not inquire of that the death constituted the felony. The languishing which was done in another county. It is provided in alone, which is not any part of the offense, is Inid in that act that the indictment may be taken in that Kent. The indictment states that the prisoner was county where the death doth happen." The reason then and there present, aiding and abetting in the assigned for this passage from the Institutes can hardly commission of the felony. That must of course apply be accepted as sound at this day; that is, that the ju- to the parish of All Saints, where the blows which colla rors of one county cannot inquire of that wbich is done stitute the felony were giren." And there are many in another county. But we bave the authority of the cases in this country which hold that, upon the defini. great Sir Matthew Hale to the contrary of this doc- tion of murder, and the elements that enter into and trine of Coke. Iu 1 Hale's Plens of the Crowli, 426, constitute the crime, the place of the death is wholly the author says: “At common law if a man had been immaterial in the prosecution of the offender, except stricken in one county and died in another, it was in those cases specially provided for by positive statdoubtful whether he were indictable or triable in ute; in other words, that the giving of the mortal blow either, but the common opinion was that he might be that caused the death constitutes the felony, and the indicted where the stroke was given, for the death is removal of the corpse to the county in wbich the mosbut a consequence, and might be found in another tal stroke was inflicted is not required for any purpose county,” and he cites for this the Year Books 9 Ed- connected with the jurisdiction of the court over the ward IV, page 48, and 7 Henry VII, page 8. And he crime or the offender. And without stating the facts then proceeds to say that “if the party died in an- of each case, wherein these principles have been conother county, the body was removed into the county sidered and maintained, we may refer to the cases of where the stroke was given for the coroner to take an Riley v. State, 9 Humph. 646; People v. Gill, 6 Cal. 637; inquest super visum corporis." · But now,” says the Minnesota v. Gessert, 21 Mimn. 369; State v. Bowen, 16 author, “by the Statutes of 2 and 3 Edward VI, cbap- Kans. 476; Green v. State, 66 Ala. 40. In the very cel.. ter 24, the justices or coroner of the county where the ebrated case of U. S. v. Guiteau, tried in the District party died shall inquire and proceed as if the stroke of Columbia in 1881-82, and reported in 1 Mackey, 498, had been in the same county where the party died," this question of jurisdiction was extensively discussed thus showing that the common law was changed by the by counsel, and elaborately considered by the court. Statutes of 2 and 3 Edward VI, but that our statute of The accused was indicted under section 5339 of the 1809 (chap. 138, 17) is simply declaratory of the com- Revised Statutes of the United States, for the murder, mon law, and according to that law, and to what was by shooting in the District of Columbia, of the then plainly Sir Matthew Hale's conclusion from the his, president of the United States, James A. Garfield, tory of the law, the crime in this case was committed who, after receiving the mortal wound, languished for

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THE ALBANY LAW JOURNAL.

upon examination where the fatal stroke was given, and the place of the id by judicial de consequent death was quite immaterial. The author ght in the deter- | ity of the opinion of Lord Hale 80 plainly indicated in this provision of the passage from bis work just quoted has been fully the common law, reoognized by subsequent writers of high repute. 011 and principle Thus in 2 Hawkins' Pleas of the Crown, page 130, selAmortal blow or tiou 13, the author says: “It is said by some that the lois State, and the death of one who died in one coulity of the wood 11 consequence of given in another was not indictable at all at commen State, within the law, because the offense was not complete in either or poison admin. county, and the jury could inquire only of what hapý the terms of the pened in their own county. But it hath been bolden

by others that, if the corpse were carried into the Fland that is vio- county where the stroke was given, the whole night where death may be inquired of by a jury of the same county.” And so Act of the accused in 1 East's Plens of the Crown, page 361, that rery olig inflicted upon learned and accurate writer says: “Where the stroke lided while under and death are in different counties, it was doubtful at le, but the peace

common law whether the offender could be tried at all, .ct is perpetrated the offense not being complete in either, tbough the not immediately more cominon opinion was that he might be indicted misequence of the where the stroke was given, for that alone is the act of ime of murder is the party, and the death is but a consequence, and wound then and might be found, though in another county, and the

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re agency in pro. body was removed into the county where the stroke he injured party

was given." It is not necessary that we should cite s, if death epsues other text-writers upon this subject; those we have e of the stroke or cited sufficiently indicating the state of the English 'acteristics of the common law in regard to the question bere involved, wat death ensues,

though expressed with the doubts formerly entertained original felonious hy some. ng the blow that The question however does not rest on the authority

of text-writers aloue; judicial decisions are not want. ponsible to a con- ing upou the subject. In the case of Rer v. Hargrare, of the doubt that 5 Car. & P. 170, tried before Mr. Justice Patteson in is subject. In 3 1831, an indictment for manslaughter charged tbat A. on the preamble gave the deceased dirers mortal blows at P., in the , he says: “And county of M., and that the deceased languished and 2 Edward VI if a died at D., in the county of K., and that the prisoner · poisoned in one was then and there aiding in the commission of the r county, no suf- felony, l'pon objection to the sufficiency of the ine been taken indictment, the learned justice, in orerruling the objeclaw of the realmtion, said: “The giving of the blows which caused

inquire of that the death constituted the felong. The languishing It is provided in alone, wbich is not any part of the offense, is laid in De taken in that Kent. The indictment states that the prisoner was n." The reason

more than two months and died in the State of New

of the inability of the siok juror to be present the courtJersey, where he bad been taken in the hope of relief. adjourned until 10 o'clock A. M. the next day, at which The contention there wns on the part of the prisoner time the whole panel attended. It is not pretended or that the inurder was committed only partly within the suggested that the sick jurur was approached by any District of Columbia and partly within the State of one, or tampered with in any manner. The motion to New Jersey, ild therefore there was no jurisdiction discharge the panel was founded upon the simple fact in the court in the District of Columbia to try aud con- that the sick juror had been separated from his fellow vict the prisoner for his crime. But this contention jurors before verdict rendered. In overruling this was overruled. It was first considered and overruled motion the court below certainly committed no error. in the Criminal Court, in a very learned and able opine In the trial of capital cases even there are many occaion by Mr. Justice Cox, before whom the case was tried, sions when in reason, and a proper regard to the needs and after conviction the case was taken to a session in of humanity, it may become necessary to allow a temGeneral Term of the Supreme Court of the District, porary separation of the jury, without necessarily where the decision of the trial court was fully re- breaking up the trial, and that, even after the jury viewed, and the conclusion of Mr. Justice Cox con- have retired to consider of their verdict; otherwise curred in, though for reasons somewhat variant from protracted trials could seldom be brought to a final those employed by the trial judge. In the opinion of conclusion. Of course the separation should only be Judge Cox the common-law authorities sustained the allowed when attended with those precautions and jurisdiction, but he was further of opinion that the safeguards necessary to secure entire freedom from statute of 2 George II, cbapter 21, was in force in approach or external influence of any kind. Neal v. Maryland at the date of the cession of the District lig State, 64 Ga. 272; Şinte v. Payton. 90 Mo. 220; Coleman this State, and consequently was still in force in the v. State, 59 Miss. 484; State v. O'Brien, 7 R. I. 337 : District, and that that statute fully applied to the Goersen v. Com., 106 Penn. St. 477; People v. Bonney, case; and while the court of review, sitting in General 19 Cal. 426; 1 Bish. Crim. Proc., $$ 993, 994; 12 Am. & Terin, agreed in the conclusion arrived at by Judge Eng. Enc. Law, 371. But ench case rests upon its own Cox, and also in the proposition that the common law peculiar circumstances, and is within the sound diswas sufficient for the case, it held that, by the terms of cretion of the trial court, and is therefore not the subthe statute of the United States applicable to the Dis- ject of appellate review, except where it is affirmatrict of Columbia, which provides that in all places or tively shown that the party has been prejudiced by the districts under the sole and exclusive jurisdiction of action of the court. the United States, if a party shall commit the crime of It follows that the judgment below must be af. murder, such person, on being convicted, shall suffer firmed. death, the party inflicting the mortal wound in the District is guilty of murder, though the death of the

WILLS-CONSTRUCTION-POWER OF SALE victim subsequently occurs, in consequence of the wound, in any of the States of the Union; that in such

PAYMENT OF DEBTS. case the crime of murder becomes complete in the dis

NEW YORK COURT OF APPEALS, NOV. 29, 1892. trict where the mortal womd was given, in the contemplation of the statute, irrespective of the place of

IN RE GANTERT. the death, thus holding that the mortal stroke which

IN RE JUch's ESTATE. caused the death constituted the felony, and that the place of death was immaterial to the jurisdiction of

Testator directed his executors to pay all his just debts, and

gave them all his property, both real and personal, under the court to try and convict the offender. But that

a common trust, in which all the beneficiaries were to was not all that occurred. After the con viction and

share equally. The executors were given full power to review bad at the General Terin an application was sell and convey all the real estate, and there was nothing made to the late Mr. Justice Bradley of the Supreme in the will restricting the exercise of the power to trust Court of the United States for a habeas corpus, on the purposes. Held, that the power of sale was imperative, ground that the Criminal Court of the District of Col- and could be compelled in favor of a creditor whose debt umbia had no jurisdiction of the offense, and there

was directed by the will to be paid, and for the satisfacfore the conviction was void. But that learned jus.

tion of which the personal estate is insufficient.

17 N. Y. Supp. 910, affirmed. tice, upon consideration of the case, concurred with the courts of the District of Columbia in holding that

Department. had been properly tried, and therefore dismissed the

Petition by Paul G:tert, a creditor, to obtain a sale petition. And thus ended that memorable case. Both of the real estate of William A. Juch, deceased, for the upon reason and authority therefore this court is of

payment of debts. opinion that the court below was entirely correct in overruling the demurrer to each and all of the counts

William Langdon (Abner C. Thomas, of counsel), for of the indictment, and as there is no cause assigned in appellant. support of the motion in arrest of judgment, that

Thomas Allison, for respondents. could be considered on such motion, the court was also correct in overruling that motion.

MAYNARD, J. The testator made his will November (2) The second question presented is one of practice. 28, 1887, and died July 1, 1888. He owed unsecured It arose upon a mnotion by the prisoner to discharge debts to the amount of $30,000, and the net value of the jury during the course of trial, because of alleged his personal property, after the payment of the expenseparation of the jury in the recess of the court. It ses of administration, did not exceed $1,025.

It is to appears that the entire panel of twelve were placed in be inferred that this was the condition of his property charge of the sheriff during a recess of the court from at the time of the execution of the will, as it does not 4:30 P. M. to 7:30 P. M., and were taken to quarters pro- appear that any change had occurred intermediate that vided at an hotel in the town. Upon reaching the date and his death. He owned real estate of the estihotel one of the jurors was suffering so much from ill- mated value of $73,500. exclusive of the incumbrances ness that he bad to be allowed to go to bed, but he was upon it. He appointed his wife, one of his sons and a alone and was locked in the room by the sheriff. At friend the executors and trustees of his will, and he the hour of reassembling of the court, the other eleven first orders and directs them to pay all his just debts jurors were taken unto the court, but in consequence and funeral expenses as soon after his decease as may

there was jurisdiction of the offense, and that the party | APPEAL from Supreme Court, General Term, First

then and there present, aiding and abetting in the itutes can hardly commission of the felony'. That must of course apply t is, that the ju- to the parish of All Saints, where the blows which cout. bat wbich is done stitute the felong were giren.” And there are many authority of the cases in this country which hold that, upon the defini. ary of this doc- tion of murder, and the elements that enter into and f the Crown1, 4:26, constitute the crime, the place of the deaih is wholly

a man had been immaterial in the prosecution of the offender, except another, it was in those cases specially provided for by positive statle or triable in ute; in other words, that the giving of the mortal blow that he might be tbat caused the death constitutes the felong, and the for the death is remoral of the corpse to the county in which the mor and in another tal stroke was inflicted is not required for any purpose ar Books 9 Edo connected with the jurisdiction of the court orer the page 8. And he crime or the offender. And without stating ibe facts arly died in an- of each case, wherein these principles have been con into the county sidered and maintained, we may refer to the cases of oner to take an | Riley v. State, 9 Humph. 646; People v. Gill, 6 Cal. 65:

now," says the Minnesota v. Gessert, 21 Minn. 369; State v. Boven, 16 ward VI, chap- | Kans. 476; Green v. State, 66 Ala. 40. In the very celo

unts where the ebrated case of U. S. v. Guiteau, tried in tbe District 18 if the stroke of Columbia in 1881-82, and reported in 1 Macker, 1% he party died," this question of jurisdiction was extensively discussed changed by the / by counsel, and elaboratels considered by the conrt. I our statute of The accused was indicted under section 5339 of the ff of the com- Revised Statutes of the United States, for the murder, ind to what was by shooting in the District of Columbia, of the then i from the his, president of the United States, James A. Garfield,

committed / who, after receiving the mortal wound, languished for

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be convenient. He then gives all bis property, both

such a purpose. No difficulty of this kind is in the
real and personal, to his executors and trustees, upon way here. The real and personal property is blended
certain specified trusts for the benefit of his wife and in one gift to the executors for a common trust, in
three minor children, and in the concluding paragraph which all the beneficiaries share equally. In such
of the instrument appoints the executors and trustees, cases the exercise of a general and unlimited power of
and couples the appointment with a power in these sale is imperative, and may be compelled in favor of
words: “Giving and granting unto my said execu• any party who is lawfully entitled under the provis-
tors and trustees full power and authority to sell and ions of the will to the proceeds of the real property
convey any and all my real estate, either at private when sold. A creditor whose debt is directed by the
sale or public auction, and to make, execute and de- will to be paid, and for the satisfaction of which the
liver good and sufficient conveyances therefor." The personal estate proves insufficient, belongs in this
paragraph closes with a specific authority to mortgage class. He is beneficially interested in the exercise of
the real estate for certain purposes, which it is not im- the power, and as to him it becomes a power in trust,
portant to consider here. The petitioner is a general and under the statute erery such power, unless its exe-
creditor to the amount of $3,750, who has been usuc- cution or non-execution is made expressly to depend
cessful in his efforts to secure the payment of his debt on the will of the grantee, is imperative, and impuses
out of the personal estate, because of the deficiency of a duty on the grantee, the performance of which may
assets, and has brought this proceeding under the pro- be compelled i equity, for the benefit of the parties
visions of the Code ($S 2749-2801) to obtain a liquidao interested. 4 Rev. Stat. (8th ed.), p. 2448. $ 96. Such
tion of his demand by the sale of the real estate of the & power does not interfere with the order in which the
decedent. It is conceded that he is entitled to the re- assets of a decedent's estate must be marshallied for
lief sought, unless the testator's real property is, by the payment of debts. The personalty must first be
the terms of his will, subject to a valid power of sale exhausted; and if that fails, the execution of the power
for the payment of debts and funeral expenses. $2759, may be resorted to and compelled so far as necessary
subd. 4. It is true, ils the learned counsel for the peti. to meet the deficiency.
tioner contends, that a power of sale to pay debts, Buf- In a case like the present the debts are not made a
ficient to defeat the creditor's application under the charge upon the real estate. It is a naked power to
statute, must be one the exercise of which is impera- sell for the payment of debts, and the decisions which
tive, and not simply discretionary. The creditor can- prescribe the rule to be observed in determining
not be deprived of his statutory remedy unless the whether there is a charge upon the realty have no ap-
debtor has, by his testamentary act, provided him with plication. In re City of Rochester, 110 N. Y. 150; Clift
another, which is equally prompt and effective in its v. Moses, 116 id. 144; In re Powers, 124 id. 361; In re
operation. But we think the authority conferred by Bingham, 127 id. 296. If the debts were so charged
this will is adequate to secure to the petitioner the ac- there would be no consion for the exercise of the
complishment of the ultimate desigy of this proceed-

power of sale.

They would then be a liej upon the
ing. When read in connection with its other provis- realty, enforceable in equity by a sale of the property,
jons, we cannot regard the direction to the executors without the intervention of the authority of the ex-
and trustees to pay all just debts as an idle and mean- ecutors. At common law a devise of real estate, after
ingless formula. The testator well knew that his will a direction by the testator that his debts be first paid,
in this respect could not be obeyed without a sale of was deemed equivalent to a cbarge of the debts upon
some part of his real estate, and it is to be presumed the real property devised. Trott F. Vernon, Prec. Ch.
that he intended to clothe them with a power com- 430; Williams v. Chitty, 3 Ves. 545. This liberal rule
meusurate with the duties and obligations imposed of interpretation was undoubtedly adopted for the
upon thein. He evidently had in view a complete ad- reason tbat in England there was no statute until 1833
justment of the affairs of his estate by the agents of which rendered the real estate of all decedents liable
his own choice, in whom he reposed especial confi. for the payment of their simple contract debts. But
dence.

in this State there have been statutes in force for over
Whenever a power or authority to sell is given with- a century (Laws 1786, chap. 27) autborizing the sale of
out limitation, and is not in terms made discretion- a decedent's real estate to pay debts, and it has been
ary, and its exercise is rendered vecessary by the scope uniformly beld that, because of the existence of this
of the will and its declared purposes, the authority is remedy, an intent to charge debts upon real estate
to be deemed imperative, and a direction to sell will be must appear from express direction, or be clearly gath-
implied, provided the design and purpose of the testa- ered from the provisions of the will. It cannot be in-
tor is unequivocal, and the implication so strong as to ferred or implied. In this respect the rule is different
leave no substantial doubt, and his inter:tion cannot as to legacies. Clift v. Moses, supra. It is of some
otherwise be carried out. Scholle v. Scholle, 113 N. Y. | significance that the testator directs his debts to be
261; Chamberlain v. Taylor, 105 id. 194; Hobson v. Hale, paid by his executors and trustees, and that the power
95 id. 598. We are referred to many other cases where of sale is given to them in the same dual capacity. The
it has been held that a power of sale is not available suggestion of a trust seems to pervade the entire in-
for the payment of debts, but they are all cases where strument, and to characterize the duties imposed and
the power was either discretionary, or limited to some powers created by it.
other specific purpose, or where it could not be exer- There has been some discussion by counsel and in
cised without breaking up and destroying the scheme the opinions of the referee and surrogate as to the va-
of the will, and frustrating the intention of the testa- lidity of the trusts created for the benefit of the testa-
tor. Kinnier v. Rogers, 42 N. Y. 531; Scholle v. Scholle, tor's wife and minor children, but we are unable to
supra; In re McComb, 117 N. Y. 378; In re Bingham, perceive how a determination of that question becomes
127 íd. 296 If the testator has specifically devised des material upon this appeal. If the power of sale is
ignated portions of his realty, or imposed them with limited to the purposes of the trust it is not impera-
separate trusts, the presumption is very strong, and tive but discretionary. There is no discretion, ex-
usually controlling, that he did not intend that these press or implied, in the will to sell the real estate, and
dispositions of his property should be overturned by convert it into personalty for the purposes of the trust,
the exercise of a general power of sale. A direction to until the youngest child becomes of age, or until his
sell for the payment of debts cannot be implied in such death, if he does not survive bis minority. In fact
cases, because, in order to sustain the structure of the the terms of the will are such that the testator seems
will, there must be implied a direction not to sell for to have contemplated that his executors and trustees

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THE ALBANY LAW JOURNAL.

his property, both such a purpose. No difficulty of this kind is in the and trustees, upon way here. The real and personal property is blended tit of his wife and in one gift to the executors for a commou trust, in Icluding paragraph wbich all the beneficiaries share equally. In such utors and trustees, cases the exercise of a general and unlimited power of

a power in these sale is imperative, and may be compelled in favor of to my said execu. any party who is lawfully entitled under the propis thority to sell and ions of the will to the proceeds of the real property l, either at private when sold. A creditor wbose debt is directed by tbe ?, execute and de- will to be paid, and for the satisfaction of wbieh the as therefor." The personal estate proves insufficient, belongs in this pority to mortgage class. He is beneficially interested in the exercise of which it is not in the power, and as to bim it becomes a power in trast, tioner is a general and under the statute erery such power, unless its exelo bas been unsuccution or non-execution is made expressly to depend yment of his debt on the will of the grantee, is imperative, and imp: 18€

the deficiency of a duty on the grantee, the performance of which may
ing under the pro- be compelled equity, for the benefit of the parties

obtain a liquida interested. 4 Rev. Stat. (8th ed.), p. 2448, $ 96. Such
) real estate of the a power does not interfere with the order in which the
entitled to the re- assets of a decedent's estate must be marshalled for
al property is, by the payment of debts. The personaley must first be

power
alid power of sale exhausted; and if that fails, the execution of the

expenses. $2759, may be resorted to and compelled so far as necessary
unsel for the peti. to meet the deficiency.

to pay debts, suf- In a case like the present the debts are not made a ication under the charge upon the real estate. It is a naked power to which is impera- sell for the payment of debts, and the decisions wbich The creditor can- prescribe the rule to be observed in determining emedy unless the whether there is a charge upon the realty have no approvided him with plication. In re City of Rochester, 110 N. Y. 159; (lift d effective in its v. Moses, 116 id. 164; In re Powers, 124 id. 361; In me brity conferred by Bingham, 127 id. 296. Il the debts were so charged petitioner the ac- there would be no occasion for the exercise of the 1 of this proceed power of sale. They would then be a lien upon the its other provis- realty, enforceable in equity by a sale of the properts, to the executors without the intervention of the authority of the ex. an idle and meani-ecutors. At common law a devise of real estate, after knew that his will a direction by the testator that his debts be first paid,

without a sale of was deemed equiralent to a charge of the debts upon s to be presumed the real property devised. Trott 5. Vernon, Prec. Ch. th a power com. 430; Williams v. Chilly, 3 Ves. 545. This liberal rule igations imposed of interpretation was undoubtedly adopted for the w a complete ad. reason that in England there was no statute until 1833

by the agents of which rendered the real estate of all decedents liable d especial confi. for the payment of their simple contract debts. But

in this state there have been statutes in force for over sell is given with a century (Laws 1786, chap. 27) authorizing the sale of mado discretion a decedent's real estate to pay debts, and it has been

might deem it expedient to hold the real estate mean- North Missouri Railroad Company, their successor while, or some portions of it, for he has authorized and assigns, as long as the same shall be required an them to pay the interest on the mortgages, and to ex- used for the purposes of a railroad, and no longer, tb ecute new mortgages for the purpose of retiring those said right of way to be confined to that part of sai which become due and demandable. They might sell land south of the farm on the same.' The plainti at any time for the advantage of the trust, if in their never joined her husband in the execution of said coi judgment it was thought ad visable; but they could

veyance, and h: not siuce released or relinquished he not be compelled to do so until the expiration of the right of dower in said land. The North Missouri Rail trust term, and hence the existence of a power limited road Company was at the time and prior to the execu to such purposes could not be in voked to defeat this

tion of said deed a railroad corporation, duly organized proceeding If the power bad been effectually exer. and chartered under the laws of the State of Missouri cised in part, the proceeds could be treated as assets and as such then had lawful authority to construct available for the payment of debts, and until ex- railroad from St. Louis to Kansas City, through Chari hausted there could be no recourse against the other ton county. The North Missouri Railroad Company lands of the decedent. Erwin v. Loper, 43 N. Y. 521; had a right to acquire a right of way for its railroad Hood v. Hood, 85 id. 561: Glacius v. Fogel, 88 id. 434; either by voluntary conveyance or by vondemnation In re Powers, 124 id. 361. But we think that the power The conveyance above described was the only one exe is not limited to the trusty scheme, but was bestowed cuted by plaintiff's husband, and no condemuation for the purpose of enabling the executors to faithfully proceedings were ever instituted for acquiring a righ discharge all the obligations of the will, and that the of way over tbe said lands. Immediately after the exe petitioner, as a beneficiary of the power, can compel | cution and delivery of said deed, the North Missour its execution.

railroad took possession of the strip of land described The order appealed from must therefore be afbrmed, in the petition, and constructed and operated tbereon a with costs.

line of railway. The defendant has succeeded to all the All coucur.

rigbt, title, interest and estate of the said North Missouri

Railroad Company in said lands, as fully and comMARRIAGE DOWER LAND DEDICATED pletely as the same was originally conveyed by plain

tiff's husband to said North Missouri Railroad ComTO PUBLIC USE-OPINION OF LEGAL PROFESSION

pany. The defendant is a railroad corporation, organ

ized under the laws of Missouri on the 30th day of MISSOURI SUPREME COURT, NOV. 14, 1892.

September, 1887, and has since that date been in the

exclusive possession of a strip of land described in the VENABLE Y. WABASH WESTERN RY. C'o.

petition, and has maintained thereon the roadbed and A conveyance to a rallroad company of a right of way through embankments constructed by said North Missouri

the grantor's land, and of as much land adjacent to such Railroad Company, and operated its trains thereon. right of way as may be necessary for the construction of

The consideration of one dollar recited in the deed the railroad, is a dedication to the public use, and the

was never paid, nor were any damages ever paid to grantor's widow is not entitled to dower in the land so

plaintiff's husband for the injury, if any, done the reconveyed, though she did not join in the deed. The opinion of the legal profession on a question, given and

mainder of said lands by the construction and inaidacted on for a great many years, without litigation, is evi

tenance of its said line of railway. Plaintiff's husband dence of what the law on such question is.

was seised in fee and was in possession of all of said

lands described in the petition at the time of his death, HE

a strip of ground one hundred feet wide and two aforesaid. Said lands constitute one farm or planta. bundred and serenty-five rods long, which the defend. tion, whereon his dwelling-house was situated, and ant company occupies as a right of way, and as inci- where he resided with bis family at the time of his dent to such claim she asks damages because of being death. Plaintiff, his widow, by herself and her tendeforced of her dower; this is, iu substauce, the first ants, has ever since remained in possession of said count of her petition. The second count of the poti. dwelling-house and farm. No dower has erer been astion seeks to recover damages by reason of the railroad signed said widow in any of the lands described in the of the defendaut dividing the farın into irregular par. | petition. The embankment complained of in the seccels, thereby impairing its value, and by reason of em- ond count of plaintiff's petition was constructed by bankments thrown up in the building of the railroad, the North Missouri Railroad Company in the early whereby about fifty acres of said land were rendered part of 1868, more than twenty years before the insti. wholly untillable and worthless. The cause was tried tution of this suit. Said embankment was, when so on the following agreed statement of facts: “The first constructed, and has ever since remained, a perplaintiff is the widow of Jacob M. Vevable, to whom manent structure, and no change has ever been made she was lawfully married in 1846, and with whom she in said embaukment since its first construction afore. lived as his wife until his death, in 1882. During the said. This action was instituted by the widow in coverture of plaintiff, on the 19th day of October, 1865, 1888." her husband, then lawfully seised in fee of the lands described in the petition, executed, acknowledged and

A. W. Mullens, Thomas Elliott and Crawley & Son, delivered to the North Missouri Railroad ('ompany a

for appellant. deed, now duly recorded, conveying to said company F. W. Lehmann and George S. Grover, for respoudthe right of way for the construction, operation and

ent. use of the west branch of the North Missouri railroad over and through any land owned by him in the county SHERWOOD, J. 1. The first and the controlling ques. of (bariton, in said State, the same being situ- tion the record presents is whether the plaintiff is enate in sections 10, 11, 14 and 15, township 53, titled to demand dower in the defendant company's range 19, the said right of way to bare the extent right of way. Touching the validity of such a demand of one hundred feet in width through said lands, in circumstances similar to those here related, an auor as much more as may be necessary for the actual thor of recognized authority says: “(1) In the time of coustruction and operation of said railroad, according Henry III, the Great Charter of King Jobu was 80 to the nature of the ground,' upon the following condi. amended as to withhold from the widow the privilege tion: ‘To have and to hold the same unto the said of quarantine in the castle of her husband. This,

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ssary by the scope uniformly beld that, because of the existence of this

the authority is remedy, an intent to charge debts upon real estate cion to sell will be must appear from express direction, or be clearir gath. pose of the testa-ered from the provisions of the will. It cannot be in: 10 B0 strong as to ferred or implied. In this respect the rule is different intertion cannot as to legacies. Clift s. Moses, supra. It is of some Scholle, 113 N. y. significance that the testator directs his debts to be : Hobson v. Hale, paid by his executors and trustees, and that the power ther cases where of sale is given to them in the same dual capacity. The e is not available suggestion of a trust seems to persade the entire in

all cases where strument, and to characterize the duties imposed and ' limited to some powers created by it. ald not be exer- There has been some discussion by counsel and in sing the scheme the opinions of the referee and surrogate as to the Fjo on of the testa lidity of the trusts created for the benefit of the testaScholle v. Scholle, tor's wife and minor children, but we are unable to

In re Bingham, / perceire how a determination of that question becomes ally derised des material upon this appeal. If the power of sale is osed them with limited to the purposes of the trust it is not impera'ery strong, and / tive but discretionary. There is no discretion, es. tend that these press or implied, in the will to sell the real estate, and orerturned by convert it into personalty for the purposes of the trust.

A direction to until the youngest child becomes of age, or until his implied in such / death, if he does not survive bis minority. In fact tructure of the the terms of the will are such that the testator seems not to sell for to have contemplated that his executors and trustees

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