[7] The fourth specification complains that: "The court erred in permitting the witness for the commonwealth, Mrs. Mary Henderson, to testify that she destroyed a note which she found on the body of the deceased, when there was no evidence that the defendant was present at the time." The finding of the note was part of the res gestæ of the discovery of the body of the deceased, and it was proper for the commonwealth to show why it was not produced in court.

[8] The evidence was competent on this ground alone, but, in addition, the witness had previously stated that she had destroyed the note, without any objection from the defense; hence, the admission of the testimony in question could not have done the defendant any material harm. We see no merit in the assignment.

account of their being opposed to capital that the commonwealth's representative did punishment; such jurors having qualified not mean to abuse his power, and that no themselves under the law by stating that they harm was done to the defendant by the recould disregard their conscientious scruples marks complained of. After reviewing the and render their verdict according to the law whole record, we agree with the conclusion of and the evidence." The particular juror the court below. whose examination is called to our attention by this assignment first asserted that he had conscientious scruples against capital punishment which he feared he could not overcome, but subsequently said that he could render a verdict according to the evidence. Had the court permitted this juror to serve, it would not have been error, but, as just stated, such matters are peculiarly for the trial judge, and a ruling thereon will not be reversed unless a palpable abuse of discretion appears. In the words of our Brother Brown, in Com. v. Sushinskie, 242 Pa. 406, 89 Atl. 564: "The challenge of a juror for cause is addressed to the trial judge, and much weight must be given to his judgment in passing upon it. In exercising his discretion as to the fitness of a juror to serve, he has the juror before him, and much latitude must be left to him; and the weight to be given to the answers of a juror when examined on his voir dire is not to be determined exclusively by his words as we read them in the printed record. They are first to be weighed by the trial judge, who sees and hears the juror, and, in the exercise of a wide discretion, may conclude that he is not competent to enter the jury box for the purpose of rende:ing an impartial verdict, notwithstanding his words to the contrary (Clark v. Com., 123 Pa. 555 [16 Atl. 795]; Com. v. Roddy, 184 Pa. 274 [39 Atl. 211]; Com. v. Eagan, 190 Pa. 10 [42 Atl. 374]; Com. v. Spahr, 211 Pa. 542 [60 Atl. 1084]), and nothing short of a palpable error will justify a reversal of a trial judge in passing upon a challenge for cause (Com. v. Crossmire, 156 Pa. 304 [27 Atl. 40])."

[9] The next five specifications complain that the court erred in not allowing certain nonexpert witnesses for the defense to testify "on the question of the sanity of the defendant," and in permitting a number of such witnesses to testify for the commonwealth. Concerning this an examination of the record shows that the trial judge ruled correctly as to both classes of witnesses, within Com. v. Wireback, 190 Pa. 138, 145, 42 Atl. 542, 70 Am. St. Rep. 625; no proper foundation for an opinion was laid by the witnesses for the defendant, and those for the commonwealth testified to an acquaintance with the prisoner and opportunities for observation which sufficiently qualified them for the purpose for which they were called.

The succeeding three specifications embrace abstracts culled from the charge of the trial judge, which, when taken with their context and the charge as a whole, do not present error, and could not have harmed the defendant.

[4, 5] Moreover, since the full panel was not exhausted, the defendant was not prejudiced by the exclusion of the jurors in question; the right to have a cause tried by an impartial jury does not give a right to the service of any particular individual (Com. v. [10] The thirteenth specification covers a Payne, 205 Pa. 101, 103, 54 Atl. 489; Man- request for charge on the part of the defendsell v. The Queen, 8 E. & B. 54*, 73*, 79*; U. ant which attempts to state the law governS. v. Byrne (C. C.) 7 Fed. 455, 457; Watson ing cases of hallucinations and delusions. v. Walker, 33 N. H. 131, 144; Shubert v. State, 66 Miss. 446, 450, 6 South. 238; State ▼. Reynolds, 171 Mo. 552, 556, 72 S. W. 39; Asevado v. Orr, 100 Cal. 293, 300, 34 Pac. 777; 24 Cyc. 251); the thing which the law especially seeks to guard is the right to re-essary to go into the matter again at this ject, not to select (Com. v. Brown, 23 Pa. Super. Ct. 470, 498; State v. Jones, 97 N. C. 469, 1 S. E. 680).

The request was denied "for the reason that it was not supported by evidence in the case." We recently had occasion thoroughly to discuss this subject in Com. v. Calhoun, 238 Pa. 474, 86 Atl. 472, and we do not deem it nec

time; under the testimony the request as drawn was not relevant to the case, and it was properly refused upon that ground.

[6] The third specification calls attention [11] The fourteenth and fifteenth specificato certain remarks of the district attorney tions complain of the refusal of two othet in his opening address, wherein he made requests for charge submitted by the defendpromises of proofs which he subsequently ant, both of which were so loosely drawn failed to produce. In dealing with this inci- that they could not properly have been af

tion.

RANNEY v. BYERS.

(242 Pa. 450)

that the accused could not be convicted of ment is affirmed, and the record is remitted murder of the first degree if he was "labor- to the court below for the purpose of execuing under mental derangement although not constituting total insanity," and the next to instruct that, if the defendant was "so addicted to the excessive use of cigarettes that the effect thereof upon his mental and physical system was to poison his faculties and make him unconscious at times of a moral sense of right or wrong," he could not be convicted. The trial judge would not have been justified in making any such vague statements of law to the jury, since they would have tended to confuse rather than to enlighten the triers upon their duties.

[12] The sixteenth specification complains because the trial judge refused to instruct "if the jury have a reasonable doubt as to the mental responsibility of the defendant at the time of the commission of the crime, such a doubt must operate in favor of the defendant to prevent a conviction of murder of the first degree." As to this, it is sufficient to say that the law is not correctly stated in the request. Com. v. Sushinskie, supra.

(Supreme Court of Pennsylvania. Nov. 7, 1913.) WILLS (753*)-CONSTRUCTION-SPECIFIC BEQUEST.

Testator bequeathed to his daughter "$20.000, or such part thereof as I may receive from S. for land hereafter sold to him by me," situated in N., less cost and expenses incurred in suit between Ranney Bros. "and myself." Held, that the bequest was general and not specific, and the daughter was not limited to the sum testator might recover for the land sold.

[Ed. Note.-For other cases, see Wills, Cent. Dig. §§ 1939-1944; Dec. Dig. § 753.*]

Appeal from Court of Common Pleas, Venango County.

Action by Fannie A. Ranney against Charles P. Byers, executor of John P. Byers, deceased. From a judgment overruling demurrer to statement of claim and ordering judgment for plaintiff, defendant appeals. Affirmed.

The following is the opinion of the lower court:

[13] The final specification is to the effect that the court erred in not instructing, as requested, that "the jury is not permitted to presume a motive for the act of the defend"From the plaintiff's statement it appears ant, nor to presume that the defendant formthat the defendant's testator, late of the ed a deliberate or specific intent to take the borough of Cooperstown, deceased, died life of the deceased; but the jury must find March 23, 1910, having first made his last these elements from the testimony before will and testament, since his death duly prothere can be a conviction of murder of the bated and recorded in the register's office first degree." There was nothing approach- of said county, leaving to survive him a son, ing "positive evidence" of insanity, and, unCharles P. Byers, now and for some years der the facts of this case, it was in no wise past residing at New Castle, Lawrence counessential that the testimony should show a ty, Pa., named in such will as the executor motive for the killing (Com. v. Calhoun, 238 thereof, and who duly qualified as such, and Pa. 474, 487, 86 Atl. 472; Com. v. Danz, 211 two daughters, viz., Fannie A. Ranney, the Pa. 507, 516, 60 Atl. 1070; Com. v. Buccieri, plaintiff herein, who since 1895 has also, 153 Pa. 535, 544, 26 Atl. 228; hence, the point with her husband, Cassius W. Ranney, rewas properly refused. But in his general in-sided at New Castle, Pa., and Theodosia E. structions the trial judge made it plain that the presumptions on all the essential elements of the crime with which the defendant was charged were to be drawn in his favor, and affirmed without qualification a point which stated: "Before the jury can convict the defendant of murder of the first degree, they must find from the evidence, beyond a reasonable doubt, that the defendant

*

*

*

did form a specific intent to take the life of the deceased;" under the circumstances, the defendant has no ground for complaint.

The case was carefully tried, and every right of the accused was safeguarded; it was submitted to the jury in a charge which stated the applicable rules of law and correctly covered all relevant matters suggested by the defendant's points. The few mistakes found upon the record made for, rather than against, the defendant. We are not convinced of substantial error, and feel that the verdict was fully justified by the evidence.

The assignments are overruled, the judg

King, intermarried with Charles W. King and residing at Cooperstown aforesaid, but

since deceased.

"At the time of his decease the said testator had personal estate amounting to $85,000 and upwards in value, besides real estate situate in the county of Venango, and a large tract, divided into building lots, situate in the county of Lawrence, adjacent or near to the said city of New Castle, which had been conveyed to him in 1896.

"In the year 1906 the testator entered into a contract with one S. C. Faddis for the sale to the latter of the said tract of land in Lawrence county, for the consideration of $22,500, $1,000 of which was then paid in cash, the balance to be thereafter paid in specified installments. A few days after this contract was entered into, Cassius W. Ranney, the testator's son-in-law, and Robert B. Ranney, his brother, instituted proceedings in equity in the court of common pleas of Lawrence county, averring that the said tea

tator held the title to said lands in trust for sider the environment of the testator and them and praying that the court so decree and restrain and enjoin the sale of the land to Faddis. After hearing upon bill and demurrer, it was on July 10, 1907, so decreed, but it was also determined that the Ranneys were indebted to the testator for moneys advanced and paid out on account of the said land and the purchase thereof, in the sum of $21,870.92, which, with interest thereon, was to be paid by them to the testator within one year, otherwise the decree might be modified, vacated, and set aside. From this decree and judgment the testator on July 24, 1907, appealed to the Supreme Court. On October 23, 1907, the appeal was argued, and on January 6, 1908, the decree was affirmed. On January 23, 1908, an adjustment was made by the testator with Faddis by which the latter, in consideration of the sum of $1,500, released the testator from liability on his contract of sale, and quitclaimed to him any interest or claim which he had in or to the said land. November 20, 1909, default having been made by the Ranneys in the payment of the said sum of $21,870.92 and interest for more than one year, a cross-bill was filed by the testator, and thereon, after hearing on bill and answer, a decree was made vacating the decree of July 10, 1907, and declaring the trust therein mentioned in favor of the Ranneys to be forever extinguished.

"While these proceedings were pending, and just prior to the argument in the Supreme Court of the testator's appeal thereto, to wit, on October 9, 1907, the testator made his last will and testament wherein, among other things, he provided as follows, to wit: Third. I give and bequeath to my daughter, Fannie A. Ranney, twenty thousand dollars, or, such part thereof as I may receive from S. C. Faddis for land heretofore sold him by me, situate in the city of New Castle, Pennsylvania, less how ever all costs and expenses, including attorneys' fees, which I may incur in the suit or suits now pending between Ranney Bros., or either of them and myself.'

"That the land referred to in this portion

of the will is the same referred to and described in the contract entered into with Faddis, purchased by the testator in 1896, situate in Lawrence county adjacent or near to the city of New Castle, is averred in the statement of claim and unquestioned.

"A question having arisen whether or not, under the facts stated and more fully set forth in the plaintiff's statement, Mrs. Ranney is entitled to the legacy mentioned in the quoted paragraph of the will, this action was brought to determine her right thereto, and apparently all facts supposed to have any relevancy to the question have been set forth in the statement of claim in order that the law arising thereon may be declared summarily upon demurrer.

his estate and kindred at the time he made his will. He had two daughters and a son; one daughter was given the property, real and personal, in and about Cooperstown, where he had a considerable estate. The son was made his residuary legatee and as such took an estate, the amount of which does not definitely appear, but which was likewise considerable. For the other daughter special provision was made by the above-quoted third paragraph of the will. In a trust fund of $60,000 the three were to share equally with a number of others. This brief summary of the scheme of distribution of his estate indicates that the testator at the time not only had in mind all of his children but, in a measure at least, an equality of distribution. "It must be assumed that the testator knew what estate he had and approximately the value thereof. He knew of the land in Lawrence county, of his contract with Faddis, and of the Ranney suit. He knew that there was a decision of the court of common pleas of Lawrence county adverse to him and to the effect that he held the land in trust for the Ranneys and had no right to sell to Faddis. He knew that he had appealed to the Supreme Court from that decision, and that it might be reversed, and that he might be able to consummate the sale to Faddis, and likewise that it might be affirmed, when he could not do so. But he also knew that he had a firm grip on the land and would either receive the balance of the purchase money, $21,500 and interest, from Faddis, or he would receive from the Ranneys the amount found by the court to be due by them, viz., $21,870.92 and interest, or he would get the land. There is no basis whatever for an inference that he was anticipating a loss of both the land and its value. Under these circumstances, and with this knowledge on his part, he executed his will and made the provision for his daughter Mrs. Ranney,

above noted.

belong? It appears unnecessary to note and "To what class of legacies does this one

cite cases and authorities as to the essenand specific legacies; nor is it material, under tial characteristics of general, demonstrative, the facts here involved, whether this one be demonstrative or general, since if demonstrative, and the fund from which it was to have been paid has failed, resort may be had for its payment to the general assets of the estate in like manner as if it were general. Besides there was no contention by either of the parties that it was demonstrative; the claim of the plaintiff being that it is general, while that of the defendant is that it is specific and was adeemed by the testator in his lifetime.

"If the third paragraph of the will ended with the termination of the first clause thereof, clearly the legacy therein mentioned and

one.

The second or alternative clause which with her husband and secured the price or follows does not in itself amount to a spe- value of the loan from Faddis instead of cific bequest, nor does it as understood, hav-some one else is neither reasonable, creditable ing in view the provisions of the will as a to the testator, nor permissible. A more reawhole, the property, kindred, and environ-sonable inference and assumption is that the ment of the testator, so change or modify the alternative form was used deliberately befirst as to constitute it specific. There is thereby constituted no gift of the sum or any sum due to the testator, by Faddis. Reference is made to the amount which he (the testator) might thereafter receive from Faddis, in payment of the balance due on the land, not for the purpose of specifically setting it apart for Mrs. Ranney, but as measuring and limiting the amount of her legacy, in case the money should be received by him. If paid to him, as he contemplated it might be, he no doubt would have regarded it as other personal funds of his own, mingled it with them, and its identity would have been speedily lost. Can it be said from the language used that he intended such particular specific fund for her, and that she should have it only in case she should be able to trace it after his death? Such would have been a very uncertain provision for her, and the language used warrants no such conclusion. He intended that she should have, contingently, at least, as a legacy a portion of his estate, and as he designated no particular portion thereof as hers, and referred its payment to no particular fund or property, it necessarily follows that he intended it should come out of his general assets. If the 'Faddis contracts had been affirmed and the testator had received the balance due thereon, and such sum, less expenses, costs, and attorney fees, had measured the amount of Mrs. Ranney's legacy, clearly the same would have been paid, as any pecuniary legacy, out of the general assets of the estate and without reference to the source from which they came. It is not contended otherwise.

"But the bequest is in the alternative. She was to have $20,000, not the $20,000 or any particular $20,000, or such part of $20,000 as he might receive from Faddis, less certain deductions. The first amount mentioned is definite, and the second, it may be assumed, he regarded as practically the equivalent of the first. The balance due from Faddis was $21,500 and interest, and $1,500 would ordinarily be regarded as a fair allowance for the expense of a lawsuit disposed of upon demurrer, even where an appeal be taken therein.

"If he intended that Mrs. Ranney should have only the net sum he should receive from Faddis, not exceeding $20,000, he could have so stated in unambiguous terms not open to misconstruction. But why should the portion of this daughter depend upon a recovery from Faddis? To infer or surmise without proof that the venerable testator intended deliberately to deprive his daughter of her reasonable portion of his estate unless he

cause of the pending situation and the uncertainty as to the result of the litigation, intending that Mrs. Ranney should have the net proceeds if the sale is consummated, and that if it should not be consummated she should have its fair equivalent or $20,000. The sale was not consummated, the contract was canceled, and the testator again had the land. The alternative provision for determining the amount of the legacy was inapplicable, as the testator apparently and reasonably should have contemplated might be the case. But to meet this emergency the first clause remained and fixed the amount definitely at $20,000. This construction does violence to no provision of the will and gives effect to the evident intention of the testator that Mrs. Ranney should have as her special portion of his estate a legacy equal to or apis to strike from the will the first clause of proximating $20,000. To determine otherwise the third paragraph thereof, which is clear, definite, and unambiguous, and substitute was inoperative, or operative only to transnothing therefor except a provision which fer the legacy of $20,000 from the plaintiff to the defendant, as the residuary legatee, and this, it is concluded, was not the intention of the testator. That which he had in mind as his daughter's special portion was the value or proceeds of the land, less the expenses of litigation, and not the proceeds or result of uncertain litigation concerning the Faddis contract. That litigation might have resulted in favor of the testator, in which event, if the testator had died before the payment by Faddis, the power to have extinguished the claim against him would have been placed in the hands of the defendant, the residuary legatee, as executor, and with it, according to the contention now made, the power to extinguish the claim of the plaintiff. Shupp v. Gaylord, 103 Pa. 319325.

"This case has been prepared and argued with care by counsel, and numerous authorities have been cited and referred to by each. These, while not particularly referred to herein, have been considered, and in what has been said they have, as understood, been kept in mind and followed. But the interpretation of wills depends so largely upon the surroundings of the individual testator, in connection with the language used by him, that, as recognized by the authorities, cases, except as they may establish general rules of interpretation, are but seldom controlling. For this reason no attempt has been made to support the conclusions indicated by the citation of reported cases or law writers. This may well be left to counsel on the appeal of