FIRST DEPARTMENT, DECEMBER TERM, 1874.

other statements were made for the same purpose, and were also

untrue.

The conduct and declarations of the several parties, together with the proof showing that one of them, with the prisoner, went through the same performance two days before, for the purpose of getting money from another woman, and the verisimilitude of their acts and statements on both occasions, were quite enough, we think, to justify the court in submitting to the jury, whether or not the whole story was not a preconcerted scheme to accomplish a criminal purpose.

The other point made in the case is upon the admissibility of the evidence showing that the plaintiff in error, together with one of his coindictees, practiced the same fraud on another person a day or two prior to the commission of the offense charged in the indictment, in which the prisoner acted the same part played by another of the parties on the occasion of obtaining the money of Mrs. Wulff.

It seems to be supposed by the learned counsel for the plaintiff in error, that this evidence was given to affect the general character of his client. It was offered for no such purpose. It is well settled, that evidence of the general bad character of the accused cannot be given on the trial, unless he first opens the door by giving evidence of his general good character. But this rule does not go the length to exclude evidence given for other and competent purposes, because its incidental or indirect effect may be to prejudice the character of the accused in the minds of the jury. Such a rule would exclude proof of the crime charged in the indictment, because it might be well argued that proof of the party's crime could not be given without impairing to a greater or less extent the value of his presumed good character.

The evidence offered of the previous like transactions of the accused, was given to show the quo animo, or intent, of the accused in the particular offense charged, and also' as tending to show the known falsity of the pretexts upon which the money of Mrs. Wulff was obtained.

For these purposes we think it was competent; and the effect to which it was entitled, was left by the court fairly and entirely to the jury.

FIRST DEPARTMENT, DECEMBER TERM, 1874.

The cases are very numerous which hold, with more or less directness, the propriety of such evidence.*

The judgment must be affirmed.

DANIELS and BARRETT, JJ., concurred.

Judgment affirmed.

3h

3 44

36ǝp140

44 HARRY S. HOUSE AND HOWARD E. KING, SURVIVING 69 AD8270 EXECUTORS, ETC., PLAINTIFFS v. SIDNEY RAYMOND AND ANOTHER, DEFENDANTS.

Will-Life estate-Title to real property—when it passes to executors - Effect of life estate in the construction of a clause-rest and residue of estate-Power of salediscretionary-death of one of the appointees of the power.

Plaintiffs' testator by his will devised and bequeathed the use of a homestead and all the personal property therein to his wife, and also gave "unto her during her natural life the use of $20,000." Held, that the widow took only a life estate in the homestead and in the personal property therein.

The will further provided: "I hereby give, etc., unto my executors all the rest, residue and remainder of my real estate and personal estate, in trust, nevertheless, for the uses and purposes hereinafter named, to wit: First, to divide the same into seven equal parts: " then followed directions that the several parts be kept invested, and the income thereof paid over to certain beneficiaries in the will mentioned. Held, that the effect of the foregoing provisions was to give to the executors for the purposes of the trust, all the testator's property (real and personal) not required to pay legacies, subject to the provisions made for his wife; and that the executors were to invest the same as far as it was capable of investment, and divide and apply the income for the benefit of the children and grandchildren during life.

The testator authorized his executors to sell his real estate whenever they and his wife (his executrix), unanimously thought that such sale would be advantageous to her estate. Held, that, after the decease of his wife, his surviving executors were authorized to sell the real property.

CASE agreed upon, submitting controversy without action, pursuant to section 72 of the Code of Procedure.

Benjamin Raymond died on the 17th day of November, 1870,

*See Wharton's Crim. Law (6th ed.), sec. 650; Wood v. U. S., 16 Peters' S. C. Rep., 360; Commonwealth v. Tuckerman, 10 Gray, 173; Copperman v. The People, 1 Hun, 115, and cases there cited; 3 Greenleaf Ev., § 15.

FIRST DEPARTMENT, DECEMBER TERM, 1874.

at Malone, Franklin county, in this State, having previously thereto duly made his last will and testament, bearing date the 24th day of May, 1870, which was afterward duly proved and admitted to probate as a will of real and personal estate.

At the time of his death the said Benjamin Raymond had three parcels of land in Malone village, one a small lot upon which was a small building called his office; also a small lot upon which was a cheap dwelling-house, let to a tenant; and a lot of nearly an acre, upon which were the dwelling-house in which he resided, and the usual outbuildings, which was called his homestead. He owned no other real property. Neither of said parcels of land could be divided into seven or even five parts without the total destruction of its value. He left a considerable personal property, consisting of money, bonds and mortgages, stocks, promissory notes, and other securities, not referred to or disposed of in the provisions of said last will and testament, preceding the sixth paragraph thereof.

He left him surviving his widow, Jane L. Raymond; two children, Sidney Raymond and Augusta E. Flanders, the above named defendants; and three grandchildren, Benjamin E. Raymond, son of the former, and Wallace R. Flanders and Ella J. Flanders, children of the latter, all of whom are of age. He left no other children or grandchildren, and these are all now living.

The first paragraph of the will reads as follows:

"1st. I hereby give, devise and bequeath unto my beloved wife, Jane L. Raymond, the use of my homestead, and all the personal property thereon at my decease, except my safe and money, bonds, notes, contracts, mortgages and obligations of every nature and description. I also give, devise, and bequeath unto her during her natural life the use of $20,000; such sum to be set apart for that purpose, out of the best securities I may have at my decease, by my executors; and in the event my said wife shall desire to use any part of said sum of $20,000, I give and devise the same, or so much thereof as she may wish, to her, and direct my executors to pay the same to her."

By the second, third, fourth, and fifth paragraphs of this will, he gave certain legacies in money to the Malone Cemetery Association and his children and grandchildren.

FIRST DEPARTMENT, DECEMBER TERM, 1874.

The sixth paragraph of his will reads as follows:

"6th. I hereby give, devise, and bequeath unto my executors hereinafter named, all the rest, residue and remainder of my real estate and personal estate, in trust, nevertheless, for the uses and purposes hereinafter named, to wit: First, to divide the same into seven equal parts; two of which said parts my executors shall keep invested for the use and benefit of my son Sidney; two they shall keep invested for the benefit of my daughter Augusta E.; one of said parts for each of my grandchildren, Wallace, Benjamin and Ella. The income whereof my said executors shall pay to said devisees, or expend the same for the use and benefit of said devisees, from time to time, as they may deem advisable, so long as each of said devisees shall live."

Then follow the seventh and eighth paragraphs of the said will, which contain nothing material to the questions in controversy.

The will then proceeds:

"9th. It is my wish, and I hereby direct my executors, to allow my son Sidney, if he may desire it, to have the use of my office building and land attached thereto, by his paying the taxes and insurance thereon, and seventy dollars annually as rent, so long as he may choose to occupy or use the same."

"10th. I hereby order and direct that any part or portion of the $20,000 devised to my wife Jane, which shall not have been disposed of by her at her decease, to be added to the parts or portions sixthly above described, and to be divided and disposed of in precisely the same manner as therein and thereafter stated."

"11th. I hereby authorize and empower my executors hereinafter named to sell and dispose of any and all my real estate, and good conveyances make thereof, whenever they and my wife shall unanimously think that such sale will be advantageous to my estate, and to that end I hereby invest them, my said executors, with the title thereto, and with the full power and authority to make such conveyance."

Lastly, the said testator appointed his said wife, Jane L. Raymond, executrix, and his friends, Harry S. House and Howard E. King, the executors, of his said last will and testament, and as such trustees of the estate, as therein before stated.

trustee.

FIRST DEPARTMENT, DECEMBER TERM, 1874.

The testator's widow duly qualified and acted as executrix and On the 22d day of July, 1874, she died, without having used or disposed of any part of the principal of the said sum of $20,000, directed by the said first paragraph of said will to be set apart for her use during her natural life.

The said Sidney Raymond has hitherto, since the decease of said testator, occupied and used the office and office lot upon the terms and conditions prescribed in the ninth paragraph of the will. No debts of the testator were unpaid at the time of decease of said widow.

Horace A. Taylor, for the plaintiffs.

Joseph R. Flanders, for the defendants.

DANIELS, J.:

The first point requiring consideration in the disposition of this case, is, whether the testator's widow took the personal property in the homestead absolutely, or only for the period of her natural life; and that must be determined from what is expressed by the first paragraph of the will. That paragraph, so far as it is now material to refer to it, is as follows: "I hereby give, devise and bequeath unto iny beloved wife, Jane L. Raymond, the use of my homestead, and all the personal property thereon at my decease, except," etc.

After excepting certain securities, money, and the safe containing them, he proceeded by adding: "I also give, devise and bequeath unto her during her natural life, the use of $20,000,"

* "and in the event my said wife shall desire to use any part of said sum of $20,000, I give and devise the same, or so much thereof as she may wish, to her, and direct my executors to pay the same to her." The entire scope and design of these provisions seem to have been to provide a suitable support and maintenance for his wife during her natural life, limiting the benefit of the bequests and devises for her to that period of time. It appears to have been the testator's design to provide amply for that object while she lived, and then to have the property, unexhausted in accomplishing it, returned to the body of his estate at the expira