creditors in full by way of preference is not fraudu. lent at common law. It is not a misappropriation of the debtor's property. Sawyer v. Levy, 162 Mass. 190, 38 N. E. Rep. 365. Such a payment does not become fraudulent as against creditors merely because the creditor, when he receives payment and gives up the evidence of his debt, illegally promises, as a part of the transaction, to compound a felony of which the debtor is guilty. The added illegal element in the contract is condemned by the law, because it is against public policy, but it does other creditors no harm. The money paid is no more than is due for the debt, and nothing is taken from the other creditors for an illegal use. See Bank v. Haskins, 3 Metc. (Mass.), 332-340; Harvey v. Varney, 98 Mass. 118-120. They are affected as well as all other members of the community are affected, and not otherwise. If it were possible to do so, they would have no right to use the debtor's liability to punishment for his crime as a means of obtaining an advantage to themselves. Taylor v. Jackues, 106 Mass. 291; Morse v. Wood. worth, .55 Mass. 233, 27 N. E. Rep. 1010, 29 N. E. Rep. 525.

VESTING OF LEGACY PRESUMED ASSENT OF EXECUTOR.

It is well established, that the legal title to a legacy will not vest in the legatee, without the express or implied assent of the executor. This follows from the principle, vesting the entire personal estate of the deceased testator in his executor, and the purpose of the rule is to protect creditors of the estate, and to prevent the testator from defrauding them, by bequeathing all his property, to various people who, if their rights were complete at the probate of the will, might take possession of the property to the loss of the creditors. So, that if the legatee takes possession of his legacy, without the assent of the executor, the latter can maintain trespass or trover against him, and that, although the will expressly directs that such consent shall not be necessary to the legatee's right.' The rule applies as well to the executor's own legacy as to that of another; though, of course, in such a case the assent, which may be either express or implied, is more often implied from the conduct or indirect expressions of the executor.2

Such is the rule at law. The tendency in equity is to somewhat modify it. Thus, while,

1 Woerner's Am. L. Admr., § 453; Croswell's Exrs. § 490, et seq.; Schouler's Exrs. & Admr., § 493; Wms. Exrs. s. pp. (1380, 1381).

2 Croswell's Exrs. § 492. See, also, Chester v. Greer, 5 Humph. 26, 31; Murphree v. Singleton, 3 Ala. 412, 415; Vanzant v. Bingham, 76 Ga. 759; Walker v. Walker, 26 Ala. 262.

as to a general legacy, such assent is, at law, a condition precedent to the legatee's right of action for the legacy, yet in equity he may proceed without such assent since in the equitable action, all the conflicting interests would be considered, and the legacy ordered paid only, if sufficient assets appeared, so rendering the assent of the executor superfluous.3 The purpose of the rule is the protection of the estate. It is not intended that the wishes of the executor should control those of his testator. The legatee is only required to await the executor's reasonable convenience. Therefore, it is well established that, where the circumstances justify it, a court of equity will either compel the executor to assent to the legacy, in order that the legal title may vest in the legatee, or, upon the principle of regarding that as done, which, in equity and good conscience, ought to be done, will assume that the executor has already assented. Says Judge Woerner, in his American Law of Administration. "If the executor unreasonably refuse his assent, relief may be obtained in equity; or it will sometimes be presumed, upon the theory that the executor has done what he ought to have done." Mr. Justice Story, in his great work on Equity Jurisprudence, discusses this subject somewhat more fully: "If the testator does not dispose of the residue of his estate, and yet, from the circumstances of the will, the executor is plainly not entitled to the residue, then he will be held liable to distribute it as a trustee for the next of kin. But the spiritual courts have no jurisdiction whatsoever to enforce a distribution for trusts are not cognizable in those courts and cannot be enforced by them. Even in the common case of a legacy of personal estate, the legacy does not vest in the legatee until the executor assents to it; and until he assents it would seem not to be suable in the spiritual courts. But courts of equity consider the executor to be a trustee of the legatee and will compel him to assent to and pay the legacy as a matter of trust. The cases relied on, fully sustain the doctrine stated. In Wind v. Jekyll, decided in 1719, it was said: "A de

3 Croswell's Exrs., § 493.

4 § 453. See, also to the same effect Schouler Exrs. v. Admrs., § 488; Wms. Exrs., p. (1375); 1 Roper's Legacies, 573.

5 Story's Eq. Jur. § 540. 61 P. Wms. 572.

vise of a chattel interest, differs from a grant thereof, such devise vesting nothing in the devisee until the executor assents; from whence it follows, that the executor is a trustee for the legatee with respect to his legacy, and this is the only reason why a legatee may bring his bill in equity against the executor for his legacy supposing it to be a trust." Again, in Cray v. Willis, decided about ten years later, where the question was as to the right of survivorship arising out of the joint-tenancy of two legatees, who were also executors, and it was important to determine whether the legacy had vested, it was said: "Besides in case of a legacy a term for years given to two, if the executors assent to the legacy, and one of the legatees dies, the legacy then will be admitted to survive, because, by consent of the executors, the legacy is to become a legal property, and consequently determinable according to the rules of the common law. Now it is not very reasonable that when the debts are all paid, (as they are in this case), the executors, delaying to give their consent to do what in equity they ought, nay, what they are compellable to do, viz.: to consent to a legacy, should defer the vesting of a legal right in a third person. But if this were so here is an implied assent: If I devise a term for years to my executor, who enters generally, he may prima facie take as legatee, this being more for his advantage; though it is otherwise where I devise a term to my executor for life only, with remainder to J S. Because if

the term were vested in the remainder-man it could not be divested out of him again, and so might make a devastavit."

9

In Lark v. Linstead, said the Maryland Chancellor, in discussing the equitable jurisdiction of legacies: "It will be found upon examining the cases cited by Judge Story in the sections Just referred to, and in the of Wind case v. Jekyll, that no action will lie at law to recover a legacy, until in the case of a specific legacy, the executor has assented thereto; or, in the case of a pecuniary legacy he has promised to pay it, that a court of equity regarding the executor as a trustee, will compel him to assent and pay the legacy as a matter of

7 2 P. Wms. 529, 531.

* 2 Md. Ch. 162. See, also, Crist v. Crist, 1 Ind. 570. 9 1 P. Wms. 575 (supra).

trust. 10 It is not, therefore necessary to inquire, in this case, whether the facts and circumstances are sufficiently strong to infer the assent of the executor to the legacy in question, as we are now in a court of equity, where, in a proper case, relief may be granted irrespective of any such assent." In Chap. man v. Fenwick," which was a petition by a negro for freedom under the will of his former owner, the court (Cranch, C. J.) said, p. 435: "If the emancipation be a specific legacy, and if the assent of the executor has not been given; inasmuch as the real and personal estate are both equally charged by this will; and as that fund is admitted to be sufficient without the value of the petitioners, he may be compelled to assent.''12 The general doctrine is clearly laid down in Andrews v. Hummerman.13 "It seems to be well settled in the law, that in a specific devise of chattels, though the right vests at the death of the testator, yet the assent of the executor is necessary to enable the legatee to obtain possession. At the common law, and this founded upon the liability of the executor for debts, he has a right to refuse the legacy until he has ascertained whether there are assets. It is therefore held to be necessary to go into chancery to obtain payment of a legacy, where there will be an account and discovery of assets, and a decree of payment if those be found sufficient. Now, at the common law an action lies for a legacy on a promise to pay, there being a sufficiency of assets.14 And trover will lie for a specific legacy after an assent of the executor. 15 An assent will be presumptive evidence of assets.' In Georgia, where the plan of codification has been adopted, the principle has been embodied in the Code, 1882. It is expressly provided that the executor cannot "by capriciously withholding his assent, destroy the legacy. In equity the legatee may compel him to assent. This rule has been applied by the Supreme Court of Missouri in the well-considered case of

10 1 Sto. Eq. Jur. § 540 (quoted above).

11 4 Cranch, C. C. 431.

9917

12 See, also, Nancy v. Snell, 6 Dana (Ky.), 143, which was another petition for freedom under a bequest of emancipation.

13 6 Pick. 129.

14 Cowp. 288.

15 3 Atk. 223.

16 §§ 2451, 2452, 2453.

17 See, also, Nelson v. Cornwell, 11 Gratt. 724.

*

Collier's Will,18 to a trust for the benefit of the testator's heirs. There the testator vested the residuum of his estate in trustees, to be divided among his children upon the happening of a certain event, who were then to take the absolute legal estate of their respective portions. Meanwhile the estate in the hands of the trustees was charged with the support and education of the beneficiaries and also charged, to such extent as to the trustees should seem proper, with their advancements and settlement in life. The trustees were clothed with large discretionary powers, not only as to the maintenance and education of the beneficiaries and their advancement and settlement in life, but even to make a difference or distinction among them in the division and partition of the trust estate, if from Providential visitation, or unforeseen casualty, or their own bad conduct, said trustees shall think it right and proper and safest and best, under all the circumstances." The court held that the interest of the beneficiaries vested upon the testator's death, that upon the death of two of the children before the happening of the contingency upon which division was to be made, their respective interests passed to their personal representatives; that the beneficiaries of the trust took under the will itself, and not under the power of appointment vested in the trustees. Said Wagner, J. : "The law is said to favor the vesting of estates, the effect of which principle seems to be, that property which is the subject of any disposition whether testamentary or otherwise, will belong to the object of the gift immediately on the instrument taking effect, or as soon afterwards as such object comes into existence or the terms thereof will permit. As therefore a will takes effect at the death of the testator, it follows that any devise or bequest in favor of a person in esse simply (without any intimation of a desire to suspend or postpone its operation) confers an immediately vested interest." The cases above stated are all strictly in accord with generally recognized principles that the vesting of distributive in the estate of decedents.20 WILLIAM L. MURFREE, JR.

18 40 Mo. 287.

19

19 1 Jar. on Wills, 726, note by Perk.; 2 Fearne on Rem., 73.

20 Schoulers' Exrs. & Admrs., § 479. See, also, § 467; Croswell Exrs.'& Admrs., § 527.

CRIMINAL LAW-EVIDENCE OF OTHER OFFENSES.

JANSEN V. PEOPLE.

Supreme Court of Illinois, January 20, 1896.

On the trial of defendant for rape alleged to have been committed on the person of his daughter, a girl 12 years old, it was error to admit, for any purpose, evidence of a like offense subsequently committed on the person of another daughter.

CRAIG, C. J.: This was an indictment in the circuit court of Stephenson county against Ebbert Jansen, plaintiff in error, for rape alleged to have been committed on or about the 1st day of May, 1894, upon the person of Mary Jansen, a daughter of the defendant, who at the time the offense was committed, was under the age of 14 years. On a trial before a jury, the defendant was found guilty as charged in the indictment, and his term of imprisonment was fixed at six years in the penitentiary. The court overruled a motion for a new trial, and entered judgment on the verdict, to reverse which the defendant sued out this writ of error.

It is first claimed by counsel for defendant that the court erred in the admission of improper evidence; and under this head it is said the prosecution was permitted to introduce evidence that another offense was committed by the defendant on the person of another daughter subsequent to the one charged in the indictment. Upon looking into the record it appears that Yetta Janzen, a sister of the prosecuting witness, was called and testified on behalf of the people, and from her evidence it appeared that she had been absent from home about three years living with a family named Clipping, who resided some five miles from the defendant. Upon cross-examination of the witness the following occurred: Counsel for defense stated that he desired to show that the witness had become displeased with her father because as she did not have as good a home with him as she had at Clipping's. By the court: "You may show that briefly, but not go into details." "Q. You did not want to stay at home did you, Yetta? A. No, sir. Q. Did your father want you to stay at home? A. Yes, sir." After this evidence was called out by the defendant, the court, over the objection of the defendant, permitted the witness on behalf of the people to testify as follows: "He tried to use me in a bad way in bed. First he was in another bed, and afterwards he came into my bed. The boys and Mary were outdoors. This was about 5 o'clock in the morning. After he got into bed, he took hold of my arms, and got on top of me.. He unbuttoned my drawers, and put his private parts between my legs. I hollered, 'Ouch.' I hollered more than one.-not very loud. When I got up and went outdoors, I found half a dozen men there." The evidence was admitted, as stated by the court, for the purpose of showing why the witness Yetta left home, and the jury

were told by the court that the evidence was not admissible for the purpose of showing that defendant had committed a crime on the girl Yetta, and they should not consider it for that purpose. The defendant testified as a witness in his own behalf, and in cross-examination admitted that he was in bed with the girl Yetta on the morning of May 15th, the day he was arrested, but he testified that he did nothing to the girl; and in rebuttal the court, over the objection of the defendant, permitted three witnesses to testify that on the morning of May 15th they were in the defendant's home, and saw the defendant in bed with Yetta Janzen in the act of criminal sexual intercourse with her. This evidence was admitted by the court, as stated at the time, on the following ground: The Court: "I wish to state that this evidence is admitted because the defendant, in his examination, testified that he had gone into this room and got into the bed with this girl, but had done nothing else. If it was material and competent for him to testify as to that matter, I think it is proper that the prosecution should be permitted to contradict it, and for that purpose I admit it in evidence, and the jury will understand that they are not hearing it for the purpose of trying this defendant for any crime committed on Yetta, but simply for the purpose of contradicting his own testimony." If the evidence of the girl Yetta and of the three other witnesses in regard to what occurred on the morning of May 15th proves anything, the evidence proves the defendant guilty of a rape on the person of Yetta Janzen, an offense for which the defendant was not indicted, and for which he was never put upon trial; and the question presented is whether the admission of evidence which proves the defendant guilty of a crime not charged in the indictment is error for which the judgment should be reversed. In 2 Russ. Crimes, p. 772, the author says no evidence can be admitted which does not tend to prove or disprove the issue joined. In criminal proceedings the necessity is stronger, if possible, than in civil, of strictly enforcing the rule that the evidence is to be confined to the point in issue. It is therefore a general rule that the facts proved must be strictly relevant to the particular charge, and have no reference to any conduct of the prisoner unconnected with such charge. It will be remembered that the crime charged against the defendant in the indictment was a rape on the person of Mary Janzen. Any evidence which tended to prove the defendant guilty of the crime alleged in the indictment was proper for the consideration of the jury, but evidence which tended to prove the defendant guilty of another crime, another rape, on some person not named in the indictment, was not competent. When a defendant is put upon trial on an indictment, he is presumed to be ready to meet the charge contained in the indictment, but he is not presumed to be ready to defend against a charge not made against him in the indictment, nor does the law

require him to meet such a charge. In Whart. Cr. Law, § 635, the author, among other things, says: "It is under no circumstances admissible for the prosecutor to put in evidence the defendant's general bad character, or his tendency to commit the particular offense charged, nor is it admissible to prove independent crimes, even though of the same general character, except when following strictly within the exceptions above stated." The exceptions alluded to by the author would not embrace the evidence under consideration. In Parkinson v. People, 135 Ill. 401, 25 N. E. Rep. 764, a similar question arose, and it was held that evidence tending to prove a similar but distinct offense from that for which one is being tried is not admissible for the purpose of raising an inference or presumption that the person committed the particular act for which he is on trial. See, also, Baker v. People, 105 Ill. 452. In criminal cases where it becomes necessary to prove a guilty knowledge on the part of a defendant, evidence of other offenses committed by him, though not charged in the indictment, may be admissible for that purpose. Thus, upon an indictment for uttering a forged bank note, knowing it to be forged, evidence may be given of other forged notes having been uttered by the prisoner in order to show his knowledge of the forgery. 2 Russ. Crimes, p. 777. The case under consideration, however, is not a case of that character, and the rule there announced has no application to this case. It is true that the court undertook to confine the application of the evidence of Yetta Janzen to the question why she had left home, and to confine the application of the evidence of the three witnesses to a mere contradiction of the defendant's evidence that he had done nothing when in bed with the girl Yetta. There are cases where evidence not admissible generally may be admitted for a single purpose, and may be confined to that purpose by the instruction of the court, but this is not a case of that character. Here the defendant was indicted for a rape on his own daughter, a girl 12 years old. On the trial of the defendant for this charge, would it be possible to prove that the defendant had been guilty of a like offense on another daughter who was only a year or two older, and confine the effect of such evidence on the mind of the jury to some trivial or insignificant matter that arose on the trial? The answer to this question is obvious. It is true that the commission of one offense is not evidence of the commission of another and an independent offense; yet the proof of the one cannot be said to be without influence on the mind of the juror, convincing him that the defendant may be guilty of the other. In Shaffner v. Com., 72 Pa. St. 60, in speaking on this subject, the court said: "Logically, the commission of an independent offense is not proof, of itself, of the commission of another crime. Yet it cannot be said to be without influence on the mind; for certainly, if one be shown to be guilty of another crime equally hein

ous, it will prompt a more ready belief that he might have committed the one with which he is charged. It therefore predisposes the mind of the juror to believe the prisoner guilty. * It is not only unjust to the prisoner to compel him to acquit himself of two offenses instead of one, but is detrimental to justice to burden a trial with multiplied issues that serve to confuse and mislead a jury." Whether the defendant was guilty of the charge contained in the indictment was a question for the jury, and it was the right of the defendant to have that question fairly submitted to the jury. That has not been done. The evidence of an independent offense was calculated to prejudice the jury, and we think it was error to admit that evidence. The judgment will be reversed, and the cause remanded. Reversed and remanded.

NOTE.-Admissibility of Evidence of Other Crimes. -The logic of the law applicable to the admissibility of evidence relevant to the issue, established at an early period of the common law the proposition that evidence of other crimes is not admissible upon the trial of a defendant for a specific offense. The object of an indictment is to give the accused distinct information of a specific charge, and, therefore, giving evidence of facts unconnected with that charge would be to take the accused by surprise. Nobody, it is said, can be prepared to answer and explain away every transaction of his life, and hence the courts have almost an invariable rule that evidence of other crimes and misdeeds must be shut out and the whole attention of court and jury confined to the single issue be. fore them.

Peckham, J., in his opinion in the celebrated case of People v. Sharpe, says that the general rule is that when a man is put upon trial for an offense he is to be convicted, if at all, by evidence which shows that he is guilty of that offense alone, and that under ordinary eircumstances proof of his guilt of one or a score of other offenses in his lifetime is wholly excluded. But for the purpose of showing guilt of the offense for which the prisoner is on trial, as also for the purpose, where that is important, of showing the motive or intent with which an act claimed to be a crime was committed, evidence which is material upon such issues is admitted, although it may also tend to show, or even directly prove, the guilt of the accused of some other felony or misdemeanor.

Thus, the general rule is not an absolutely inflexible one, and has some well defined exceptions. Rex v. Dossett, 2 C. & K. 306; Rex v. Geering, 18 L. J. M. C. 215; Rex v. Addy, 3 Den. C. C. 264; Rex v. Winslow, 8 Cox, 307; Rex v. Gray, 4 F. & F. 1102; Makin v. Atty. Gen., App. Cas. 57. The last mentioned case, decided in 1894, is a leading one on the subject. If we look at the cases in which, in criminal charges, evidence of other acts may be admitted against the prisoner, we find them falling into three classes: First. Where guilty knowledge is a necessary part of the offense, as in a charge of uttering counterfeit coin. Evidence of the passage of like money, within a reasonable time before or after the commission of the offense for which the prisoner is on trial, is admitted for the purpose of showing that when he passed the money in question it was not through ignorance of its character. So also for the purpose of proving that a shooting was not accidental, where such a fact is claimed, evidence may be given of efforts, or even

threats, made by the defendant to shoot the same individual on prior occasions.

Secondly. Where malicious intent is the essential part of the crime, as in charges of false pretenses and embezzlement, where evidence may be given of previous errors of a similar kind in the accounts kept by the prisoner in order to negative a defense that the prisoner had made an innocent mistake. Rex v. Richardson, 2 F. & F. 343; Commonwealth v. Price, 10 Gray, 472; Copperman v. People, 56 N. Y. 591; Commonwealth v. Coe, 115 Mass. 481; Mayer v. People, 80 N. Y. 364; Commonwealth v. McCarthy, 119 Mass. 354.

Thirdly. In cases where other criminal acts of the prisoner, although in a sense distinct, are really in substance part of the same transaction, as, for instance, in cases of treason and conspiracy to commit a felony. State v. Lapage, 57 N. H. 245.

In the following cases evidence of this character has been held admissible as within one of the exceptions above noted: State v. Cowell, 12 Nev. 337, 6 Cent. L. J. 221; State v. Palmer, 65 N. H. 216; State v. Kline, 54 Iowa, 183; McDonald v. State (Ala.), 3 South. Rep. 305; Commonwealth v. Ferry (Mass.), 15 N. E. Rep. 484; State v. Matthews (Mo.), 10 S. W. Rep. 144; U. S. v. Boyd, 45 Fed. Rep. 851; Commonwealth v. Russell (Mass.), 30 N. E. Rep. 763; State v. Baker (Oreg.), 32 Pac. Rep. 161; Harris v. State (Tex.), 22 S. W. Rep. 1037; Burnett v. State (Tex.), 22 S. W. Rep. 47; People v. Patterson (Cal.), 36 Pac. Rep. 436; People v. Skutt, 96 Mich. 449; Proper v. State, 85 Wis. 615; Cross v. State (Ind.), 37 N. E. Rep. 790; Mason v. State (Tex.), 20 S. W. Rep. 564; Langford v. State (Fla.), 14 South. Rep. 815; Anson v. People (Ill.), 35 N. E. Rep. 145; Strong v. State (Tex.), 22 S. W. Rep. 680; State v. Walton (N. Car.), 18 S. E. Rep. 945; State v. Minton (Mo.), 22 S. W. Rep. 808; Sullivan v. State (Tex.), 20 S. W. Rep. 927; People v. Harris (N. Y.), 33 N. E. Rep. 65; People v. Walters (Cal.), 32 Pac. Rep. 864; Cross v. State (Tex.), 20 S. W. Rep. 579; Horn v. State (Ala.), 15 South. Rep. 278; Moore v. U. S., 150 U. S. 57; Davis v. State, 22 S. W. Rep. 794; State v. Fitzsimmons (R. I.), 27 Atl. Rep. 446; Frazer v. State (Ind.), 34 N. E. Rep. 817; State v. Burke, 56 N. W. Rep. 180.

in the following cases evidence of this character was excluded: Commonwealth v. Jackson, 132 Mass. 16; Kinchelon v. State, 5 Humph. (Tenn.) 9; People v. Corbin, 56 N. Y. 363; Bousal v. State, 35 Ind. 460; People v. Barney, 48 Cal. 551; Barton v. State, 18 Ohio, 221.

In the case of Proper v. State, 55 N. W. Rep. 1035, 85 Wis. 615, testimony of the character excluded in the principal case was held admissible, and is in direct opposition to the decision of the Illinois court.

JETSAM AND FLOTSAM.

THE "TRUST FUND" THEORY.

In the late case of Adams & Westlake v. Deyette, 65 N. W. Rep. 471, the Supreme Court of South Dakota rests its decision on the ground "that the assets of a corporation are a trust fund for its creditors." On this theory a judgment confessed by a corporation for money due on an executed ultra vires contract, admitted to give a right of action for the sum recovered, was set aside as a preference of creditors. The "trust fund" doctrine seems to owe its origin to a decision by Judge Story in 1824, in the case of Wood v. Dummer, 3 Mass. 308. Since that decision it has been alter