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N. Y. Rep.]

Opinion of the Court, per CHASE, J.

he ran into a dark alley under a building where he was subsequently arrested by other officers. His revolver was found on

the ground in the alley and it contained five cartridge shells, two of which had been discharged and three of which were undischarged. The identity of the defendant as the person who took the pocket book from the woman and who subsequently shot and killed the policeman is beyond controversy.

The defendant urges that the judgment of conviction should be reversed because, as he asserts, several errors were committed during the trial which seriously prejudiced his rights. We will briefly state and consider separately some of such alleged errors.

1. The evidence is not sufficient on which to find, as a fact, that the defendant shot the policeman from a deliberate and premeditated design to effect his death.

It appears that the defendant some days prior to the homicide had the revolver with which he did the shooting and it was then in his trunk in the room occupied by him. On the night of the homicide he had the revolver in his pocket. He did not put it in his pocket for any known, lawful purpose. The inference is permissible that he carried the revolver to shoot and kill, if necessary to prevent capture in case he committed a crime. His readiness to use the revolver to avoid detention and arrest is shown not only from his shooting the policeman, but from his firing the shot while he was struggling with the young men who were holding him as we have stated.

Where a person commits highway robbery or other crime in such a deliberate, intentional and premeditated manner as shown by the circumstances in this case, and then uses a revolver carried by him with fatal effect in his effort to avoid arrest, it presents a question for the determination of a jury whether the person so killed was not killed by the deliberate and premeditated intention of the one firing the shot. (People v. Sullivan, 173 N. Y. 122; People v. Hüter, 184 N. Y. 237.)

There are in this case, however, further facts which were

Opinion of the Court, per CHASE, J.

[Vol. 196.

proper to leave to the jury upon the question of intent, deliberation and premeditation, and they are that the defendant was running in a public street where the approach of an officer in the opposite direction must have been seen by him for an appreciable space of time, and his firing the revolver directly at the officer, when the result would necessarily or probably be fatal, is of itself some evidence from which the jury might rightfully find the facts as found by them. (People v. Governale, 193 N. Y. 581; People v. Majone, 91 N. Y. 211; Leighton v. People, 88 N. Y. 117; People v. Beckwith, 103 N. Y. 360; People v. Constantino, 153 N. Y. 24; People v. Decker, 157 N. Y. 186; People v. Ferraro, 161 N. Y. 365.) 2. Evidence was improperly received that the defendant committed highway robbery in taking the pocket book from the woman.

Evidence of the highway robbery, although not competent to prove the fact of another crime, was competent as a part of a continuous transaction, and to show that the defendant was liable to arrest, and as further showing the motive and intent of the defendant in firing the shot that killed the policeman. (People v. Governale, supra.)

3. Evidence was improperly received of what the policeman said a few minutes after he was shot in identifying the defendant.

It sufficiently appears that the policeman appreciated that recovery was impossible and that his death was imminent, and his statements were properly received as dying declarations. (People v. Governale, supra; People v. Del Vermo, 192 N. Y. 470.) The policeman actually died in a very short time after he identified the man who shot him. The identity of the defendant was so conclusively established that if any error had been committed in admitting the statements of the policeman in identification of the defendant it would not have been harmful.

4. Evidence was improperly received to show that a knife was found on the ground of the alley near where the defendant was arrested.

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The knife and revolver were identified by the defendant. They were left by him upon the ground of the alley when he was taken therefrom by the officer who arrested him. The fact that the knife was left by the defendant with the revolver makes it so much a part of the history of the arrest as to permit the evidence that was received in regard to it during the trial.

The other objections urged by the defendant do not present any error or require a further detailed statement. The defendant had a fair trial and the judgment of conviction should be affirmed.

CULLEN, Ch. J., GRAY, VANN, WERNER, WILLARD BARTLETT and Hiscock, JJ., concur.

Judgment of conviction affirmed.

In the Matter of the Application of WILLIAM W. RUTHERFURD, as Administrator of the Estate of ISABELLA RUTHERFURD, Deceased, Appellant.

J. HERBERT CARPENTER, as Executor of ANNE M. STOUT, Deceased, Respondent.

Will-payment of legacies - intention to postpone must be found in will itself-interest on postponed legacy.

If payment of a legacy is to be postponed beyond the time provided by statute, the intention of the testator so to postpone such payment must be found in the will itself when interpreted in connection with the circumstances surrounding the testator at the time of making his will. A legatee is in the same position as a creditor and entitied to be awarded interest at the legal rate for such time as he is kept out of his demand. Where a testatrix, apart from a contingent expectant interest, had an estate of substantial amount from which a portion of the legacies given by her were paid, and there is nothing in her will to indicate an intention to postpone the payment of a legacy or to deprive a legatee of interest thereon, the latter is enti: led to interest after the expiration of one year from the granting of letters testamentary. Wheeler v. Ruthven,

74 N. Y. 428, distinguished.

Matter of Rutherfurd, 133 App. Div. 89, reversed

(Argued October 7, 1909; decided November 9, 1909.)

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APPEAL from an order of the Appellate Division of the Supreme Court in the first judicial department, entered June 18, 1909, which reversed an order of the New York County Surrogate's Court granting an application for the payment of interest upon a certain legacy.

Anne Morris Stout died July 2, 1900, leaving a will dated February 13, 1896, by which she gave four general legacies to the persons and for the amounts as follows: Caroline Barnard Sutliff, $12,000; J. Herbert Carpenter, $10,000; Caroline Barnard Sutliff, $5,000; Isabella Rutherfurd, $25,000. In her will she said: "I give and bequeath and direct my executor to pay the following legacies to the following named persons (those above named) each legacy to be paid in full before paying any subsequent named legatee so that the said legacies are not to abate as between themselves." She further said: "All legacies given by this will are payable out of both real and personal estate. The transfer tax on all said legacies is to be paid by my executor if there shall be a surplus of my estate after paying said legacies in full free of transfer tax."

She gave all the rest, residue and remainder of her estate to her daughter, Sarah Morris de Vagrigneuse, and appointed said J. Herbert Carpenter her executor. On the 12th day of May, 1899, she made a codicil to her will by which she rati fied, confirmed and republished it as changed and modified by the codicil and by the codicil she gave and bequeathed to the rector, church wardens and vestry of Grace Church in the city of New York ten thousand dollars and said that it was her "desire that this fund should be designated the 'Stout Memorial in Memory of Francis Aquilla Stout' and the income from said fund applied to the use of the Home for Deaconnesses connected with Grace Church."

In said codicil she also said: "I direct my executor to pay the legacy specified in the first clause of this codicil (the legacy to Grace Church) from funds remaining in his hands after the payment by him of the legacies specified in my said will." By such codicil she gave, devised and bequeathed the rest,

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residue and remainder of her estate to said J. Herbert Carpenter in case her daughter should not survive her.

At the time of making said will and said codicil and at the time of her death said Anne Morris Stout was the owner of one-third of the principal of a trust fund held by her and subsequently by her and another as trustees under the will of her late husband, subject, however, to the contingency of her daughter leaving a descendant, and also subject to said fund being held in said trust and the income therefrom paid as provided by the will of her late husband to herself and her daughter and the survivor of them. The daughter of the testatrix at the time of making said will was fifty-nine years of age, a widow and childless. Her said daughter died without leaving a descendant April 22, 1904, leaving a will which has been duly probated, in and by which she gave certain general legacies, and all the rest, residue and remainder of her estate to said J. Herbert Carpenter.

From the estate of said Anne Morris Stout her executor paid the two legacies to Caroline Barnard Sutliff aggregating $17,000, the legacy to J. Herbert Carpenter of $10,000, and on account of the legacy of said Isabella Rutherfurd $9,635.17. The payments so made, together with the expenses of administration and the commissions of the executor, consumed all of the estate of said Anne Morris Stout other than her said interest in the principal of said trust fund. Said trust fund amounted to over $388,000 of personal and about $33,000 of real property. The said Isabella Rutherfurd died July 30, 1903, and the petitioner herein was duly appointed administrator of her goods, chattels and credits. After the death of said Sarah Morris de Vagrigneuse the petitioner was paid $15,365.83, being an amount sufficient with said former payment to aggregate $25,000, the amount of the principal of said legacy, and as there was a difference of opinion about the petitioner being entitled to interest on said legacy, the question was reserved for further consideration. This application was made to compel the executor of Anne Morris Stout to pay said interest. An order was made directing the payment

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