tor, but upon the residuary legatee, to pay the indebtedness and mortgage of said company.

2. The residuum passed to the residuary legatee charged with the payment of such indebtedness and mortgage.

3. Whether the residuary legatee became personally liable for said mortgage debt by procuring an extension of time of its payment, or by the acceptance of the bequest, is not decided.

4. The final account of an executor should not be approved, and he be discharged, until the trust has been fully executed.

5. One cannot prosecute an appeal from an order discharging an executor, where he is not prejudiced by the decision.

(Syllabus by the Court.)

Appeal from district court, Douglas county; Ambrose, Judge.

Bill by Jessie L. Cowherd and Charles Kitchen, Jr., against James B. Kitchen and others. Decree for defendants, and plaintiffs appeal. Affirmed.

H. J. Davis and Kennedy & Learned, for appellants. George E. Pritchett and John C. Cowin, for appellees.

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NORVAL, J. Richard Kitchen and his brother James B. Kitchen were the equal owners on November 20, 1889, of the entire capital stock in the Kitchen Bros. Hotel Company, consisting of 500 shares, each of the par value of $1,000. The Paxton Hotel property, in the city of Omaha, constituted the assets of the company. On that day Richard Kitchen executed his last will and testament, which contained, among others, the following provisions: "Ninth. I give and bequeath to my brother Charles W. Kitchen, of Leadville, Colorado, twenty-five thousand dollars ($25,000). Tenth. I give and bequeath to each of his sons, my nephews Ralph Kitchen and Charles W. Kitchen, Junior, five thousand dollars ($5,000); and to my niece, his daughter, Jessie Cowherd, wife of W. S. Cowherd, of Kansas City, Missouri, five thousand dollars ($5,000). Any or all of said legacies described in paragraphs of this will numbered second, third, fourth, fifth, sixth, seventh, eighth, ninth, tenth, eleventh, and twelfth may be paid by my executor, in his discretion, either in cash, or in shares in the capital stock of the Kitchen Brothers Hotel Company at their par value, or part in cash and part in such shares of stock at their par value; having regard to the condition of my estate and the circumstances of the legatees, or any of them. Said legacies shall be paid, as soon as it can be properly done without embarrassment to my estate, within three years after my death. My executor is hereby duly authorized to assign and transfer, or cause or authorize the transfer of, any of my shares in the capital stock of said company, to carry out the provisions of this will. * Lastly. I give, devise, and bequeath to my brother James B. Kitchen all of the rest, residue, and remainder of my estate, of every name and nature, real and personal; the said James B. Kitchen out of said residue of my estate to pay all the in

debtedness of the Kitchen Brothers Hotel Company, including that certain mortgage for ninety thousand ($90,000.00) dollars held by George Warren Smith upon lots one (1) and two (2), block 138, in the city of Omaha. In case of the death of said James B. Kitchen before my decease, the rest, remainder, and residue of my estate shall be disposed of as follows: First, for the payment and satisfaction of all debts and liabilities, of every name and nature, of the Kitchen Brothers Hotel Company, including the said mortgage to George Warren Smith for ninety thousand dollars ($90,000.00), and all taxes, assessments, or other incumbrances upon its property; second, the residue, after satisfying said indebtedness and liabilities, shall be divided equally, share and share alike, among all the other legatees in the will named who shall survive me. I hereby constitute and appoint my brother James B. Kitchen to be the executor of this, my last will and testament; no official bond as such, or other bond, to be required of him. In case of his death before my decease, or before the final settlement of my estate, then said Ralph Kitchen to be such executor; no official bond as such, or other bonds, to be required of him." On June 27, 1890, the testator died. His said will was duly admitted to probate in the county court of Douglas county, and James B. Kitchen qualified as executor, and entered upon the performance of the duties of his trust. The assets belonging to the estate, and which came into the hand of the executor, consisted of a farm, two diamond shirt studs, and the 250 shares of stock in the Kitchen Bros. Hotel Company. At the time of the death of the testator the mortgage of $90,000 upon the property of the company, mentioned in the will, remained unpaid. The indebtedness secured by said mortgage was not to become due until 1896, and prior to the maturity thereof an extension of the time of payment for the period of 10 years was obtained by the directors of the Kitchen Bros. Hotel Company, at the instance of James B. Kitchen; and as yet said mortgage has not been paid. The diamonds and farm were distributed according to the provisions of the will. The executor also determined and elected to pay the legatees the amount of their several bequests in the shares of stock of the Kitchen Bros. Hotel Company, at the par value thereof, in lieu of cash, as the will permitted him so to do. He accordingly, within three years from the death of the testator, delivered to each legatee, excepting certain minors, the requisite number of shares of said stock, which at their face value equaled the amount of his or her legacy, although two of them (Jessie L. Cowherd and Charles Kitchen, Jr.) declined to receipt in full therefor. Certain minors, whose bequests aggregated $25,000, have been paid nothing under the will. The executor on February 26, 1894, filed in the county court his final account, accompanied

to go to the residuary legatee more than sufficient to pay the entire indebtedness of the Kitchen Bros. Hotel Company, including the mortgage of $90,000 on the real estate. The proofs show that at all times since the death of the testator, had the assets of the estate been converted into cash, a sufficient amount of money could not have been realized to have paid the special bequests, dollar for dollar, and there would have been nothing left for the residuary legatee. The executor, being the residuary legatee, naturally elected to pay the bequests in shares of stock, as by the will he was given the right to do, because by that mode of payment there would remain of the assets of the estate 137 shares of the stock of said company to go to himself as the residuary legatee, subject to the indebtedness of the company, while a settlement with the other legatees on a cash basis would have exhausted the entire assets, and the residuary legatee would have been deprived of any benefit under the will. It is clear, and we so hold, that the executor was not, as a matter of absolute right, required by the will to pay the several bequests in cash.

It is next contended, if the legatees cannot demand that they be paid in money, they were entitled to receive stock in the condition in which the testator left it, with the burden of the mortgage indebtedness removed. In a qualified sense, this is true. The residuum, or the balance of the estate after satisfying the special bequests, the testator charged with the payment of the said mortgage; but, if the residuum should prove insufficient to lift the debt thereby secured, then, to that extent, the stock received by the legatees would necessarily be impaired or depreciated in value. As we read and construe the provisions of the will, it was not the intention of the testator that the mortgage indebtedness of the Kitchen Bros. Hotel Company should be first paid by the executor, before the legatees could be compelled to accept stock in payment of their bequests, because by the terms of the will the legatees were to be paid within three years from the death of the testator, and the mortgage debt, without the consent of the owner thereof, was not payable within that period, as it was not to mature until 1896. This is true for another and better reason: The mortgage and other indebtedness of the company was required to be paid, not by James B. Kitchen as executor, but by him as residuary legatee, out of the residuum or portion of the estate left to him. The language of the will is explicit on that point. It reads: "I give, devise, and bequeath to my brother James B. Kitchen all of the rest, residue, and remainder of my estate, of every name and nature, real and personal; the said James B. Kitchen out of said residue of my estate to pay all the indebtedness of the Kitchen Brothers Hotel Company," etc. It is plain that the duty and obligation of paying the

Had

mortgage in question were not placed on the executor, but upon the residuary legatee, unless the residuary legatee declined to accept the residuum under the provisions of the will. In that event, of course, it would be the duty of the executor to apply the residue of the estate first towards the liquidation of the indebtedness of the company. The confusion arises from the fact that the residuary legatee was named in the will as executor. James B. Kitchen declined the appointment as executor, and Ralph Kitchen been designated by the county court to execute the will, it would do violence to the provision of the will last above quoted to say that the said Ralph Kitchen, as executor, was required out of the residuum to pay said mortgage. The fact that the residuary legatee and executor is one and the same person is no valid reason for placing a construction on the will different from that which would obtain if the executor were not the residuary legatee. It is manifest that the testator had the utmost confidence in the integrity of his brother James B. Kitchen, inasmuch as the latter was named in the will as the executor, with the express stipulation that no bond should be required of him as such. And it is believed that the same confidence prompted the testator to give the residuum of his estate to James B. Kitchen, and authorized and required him out of the same to discharge the indebtedness of the Kitchen Bros. Hotel Company. There is no provision in the will which makes it the duty of the executor to see that the residuary legatee discharged the mortgage in question, before the residue of the estate is turned over to him. On the contrary, it is very evident that such was not the intention of the testator. James B. Kitchen by the residuary clause of the will was required out of the residue of the estate to pay the mortgage. He could not pay it out of the residue of the estate before the same had come into his hands. Manifestly. this is so. And there could be no residuum ascertained until all the legatees, other than the residuary legatee, had received their portions of the estate,-especially in case the executor paid in cash, and until the costs and expenses of executing the trust had been met. This is too clear to require discussion, and it logically follows that the executor at any time within the three years designated in the will was authorized to pay each specific bequest in stock, without having first sat-. isfied the mortgage in question.

Another argument of counsel for appellants is that, the time of the payment of the mortgage having been extended 10 years, the executor was thereafter powerless to pay the legatees in stock, and by such extension he became obligated to pay the bequests in cash. Counsel for the executor, in reply to this contention, suggest that the extension of the mortgage debt was not obtained by James B. Kitchen, but by the directors of the Kitchen

Bros. Hotel Company. It is true it was their act, but they were moved to do so by the insistence of James B. Kitchen. Doubtless, it was the intention of the testator that the residuary legatee should pay off this mortgage at its maturity; but neither his failure so to do, nor the extension of the time for the payment of the mortgage debt, deprived the executor of the right to pay the bequests in the shares of stock owned by the testator in lieu of money, because it was not the duty of James B. Kitchen, as executor, to pay the mortgage, nor did he, as executor, obtain the extension. If the appellants suffered loss by such extension, or by the omission to pay the mortgage at its maturity, the courts are open to afford them relief; but those matters are not sufficient causes to prevent the settlement of the estate, and the discharge of the executor.

It is urged that James B. Kitchen, having accepted the residue, is personally liable for the mortgage debt. There is no room to doubt that the 137 shares of stock received by him as residuary legatee are charged with the payment of the mortgage; but whether, by accepting the devise, he became individually bound to satisfy the mortgage,-principal and interest, we are not called upon to decide, since, if the contention of appellants on this point is well founded, it would not prevent a discharge of the executor. They could enforce the payment of the mortgage by a suit in equity against the stock, or by an action at law against the residuary legatee, upon the implied promise to pay it, if such a promise can be implied from the acceptance of the residue of the estate.

We quite agree with counsel that the executor could not properly be discharged until the trust has been fully executed. The debts of the estate of Richard Kitchen and the expenses of administration have been paid. All specific legacies have been paid, except certain bequests to minors, for whom at the time of the discharge of the executor no guardian had been appointed. The residue of the estate has been turned over to James B. Kitchen as residuary legatee. The mortgage of the Kitchen Bros. Hotel Company was not a debt of the deceased, nor one, as we have already shown, which it was the duty of the executor to pay off. The will had been fully executed, so far as it was within the power of the executor to discharge the trust, save and except that the legatees who were minors have not been paid their bequests; and a discharge of the executor should not have been made until they were paid. But these appellants were not prejudiced by the order of discharge, and it is elementary that one cannot appeal from a decision, however erroneous, which does not affect his substantial rights. Railroad Co. v. Martin, 47 Neb. 56, 66 N. W. 15. A judgment of affirmance will be entered. Affirmed.

IRVINE, C., not sitting.

1. In an information the language, "Then and there did make an assault upon one William P. Wilcox with a certain pistol loaded with gunpowder and one leaden bullet, and then and there him * did shoot," in effect charges both the assault and the shooting to have been done with a pistol loaded as described.

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2. "Malice," in its legal sense, denotes that condition of mind which is manifested by intentionally doing a wrongful act without just cause or excuse. It means any willful or corrupt intention of the mind. Housh v. State, 61 Ñ. W. 571, 43 Neb. 163, followed.

3. A ruling, if erroneous, cannot be availed of if so seasonably retracted that, by such ruling, no prejudice could result to the party complaining of it.

4. Testimony purely rebuttal in its nature may be given by a witness whose name is not indorsed upon the information.

5. Instructions should be considered as an entirety, and where, without conflict, they correctly state the law which should govern the jury in its deliberations, no criticism will be availabl which counts upon the fact that one instruction covers but a part of the entire ground.

6. Where an alibi and its effect were correctly stated in an instruction, no harm will be presumed from the fact that, in referring to it, the court descriptively said that an alibi is a part of the defense.

7. Where the court instructed the jury that the presumption of innocence continues with the accused until his guilt is established by the evidence beyond a reasonable doubt held not prejudicially erroneous to refuse to further instruct that such presumption is a matter of evidence. Bartley v. State, 73 N. W. 744, 53 Neb. 310, followed.

(Syllabus by the Court.)

Error to district court, Douglas county; Baker, Judge.

William McVey was convicted of assault with intent to kill, and brings error. firmed.

Af

W. S. Shoemaker, for plaintiff in error. C. J. Smith, Atty. Gen., for the State.

RYAN, C. The information upon which plaintiff in error was tried in the district court of Douglas county contained two counts. These were alike, except that in the first the felonious intent charged was to kill; in the second the intent was to wound. With plaintiff in error there was tried George Bradshaw, who was acquitted, as was also plaintiff in error on the first count, but he was convicted on the second. The offense in this count was thus charged: "That the said Willie McVey and George Bradshaw, on the said 21st day of May, 1897, then and there being in the county and state aforesaid, then and there unlawfully, feloniously, and maliciously did make an assault upon one William P. Wilcox, with a certain pistol loaded with gunpowder and one leaden bullet, and then and there him, the said William P. Wilcox, unlawfully, feloniously, and ma liciously did shoot, with intent then and there and thereby him, the said William P.

Wilcox, unlawfully and feloniously to wound, contrary to the form of the statutes," etc. It is urged on behalf of plaintiff in error that, while the above language charges an assault with a certain loaded pistol, there is no allegation descriptive of the weapon with which the shooting was actually done. We think, giving a fair construction to the language quoted, it is equivalent to charging that with a certain loaded pistol the accused made an assault upon, and shot, William P. Wilcox. An indictment of the form above quoted may be found sanctioned in War. Cr. Law, p. 260, and in Whart. Prec. Ind. (4th Ed.) p. 253.

It is next insisted that there should not have been admitted any evidence showing an intent to rob, for, it is urged, section 16 of the Criminal Code does not cover that intent, but requires that the act shall be done maliciously, to constitute a crime. Having laid down these propositions, counsel for plaintiff in error argues that there was no malice, for, to use his language: "The testimony of Dr. Wilcox shows that he did not know the plaintiff, had never seen him before, and, of course, had no trouble with him at any time before the alleged shooting." For a definition of the word "malice," as used in criminal codes, counsel is referred to Housh v. State, 43 Neb. 163, 61 N. W. 571, wherein it is said that "malice,' in its legal sense, denotes that condition of mind which is manifested by intentionally doing a wrongful act without just cause or excuse. It means any willful or corrupt intention of the mind."

On the trial there were efforts to show that, subsequent to the time when the assault was made, counsel for plaintiff in error and other persons, under substantially the same conditions as to time and locality, had unsuccessfully attempted to recognize individuals. We shall not determine whether or not this kind of testimony was admissible, nor whether or not the alleged errors were saved by due exceptions; for, later, permission was given to introduce the proffered testimony, and all of it the plaintiff desired was admitted.

In the trial it was developed that, when plaintiff in error commanded Wilcox to throw up his hands, the latter struck him in the mouth with his fist. When Wilcox testified, he stated that he found a contusion on the lip of plaintiff in error after his arrest. For the accused it was testified that when Wilcox, for the purpose of identification, made a physical examination of the accused, he did not remark the existence of an abrasion. On rebuttal it was proper to contradict this testimony, as was done. Again, on rebuttal

it is insisted there was error in permitting Mrs. Beesen, whose name was not on the information, to testify that, from her place of business, across the street, she observed the movements of the accused and of several parties who testified that McVey was

at his mother's residence until after the assault took place. To meet the testimony of these parties, Mrs. Beesen necessarily described acts of the accused previous to the time of the assault, and testified that, with the aid of the electric and gas light in the locality, she could see these parties with such clearness that afterwards she identified them. It is possible that some of her testimony might have been offered before that of the accused, but clearly the nature of the defense rendered her testimony admissible. Before the examination of Mrs. Beesen began, there was a general objection to her testimony, except as to matters in rebuttal; and the court announced that her testimony must, in its nature, be strictly rebuttal. She did not testify to seeing the shooting, nor to any fact from which it was inferable that the accused did it. The testimony she gave was strictly rebuttal; hence it was not required that her name should have appeared on the information. State v. Huckins, 23 Neb. 309, 36 N. W. 527; Fager v. State, 49 Neb. 439, 68 N. W. 611.

It is urged that there was error in giving the fifth instruction, for the reason that in said instruction there is no requirement that the shooting be malicious, to constitute the offense charged. In the first instruction there is a summary of the second count of the information, and in this summary malice is a very prominent factor. In the third instruction there are the provisions of the statute which McVey was accused of violating, and of the offense charged, as has already been indicated, malice is an essential ingredient. The fifth instruction expressly requires proof of the wounding being done as charged in the second count of the information; that is, maliciously. These instructions, taken together, could not have left the jury in doubt as to the necessity of showing "malice," as we have already defined that term, and the rule is that all the instructions should be read together. Bartley v. State, 53 Neb. 310, 73 N. W. 744.

In one instruction the court spoke of an alibi as a part of the defense of the accused, and this, it is claimed, left the jury free to infer that an alibi, if successfully established, amounted to but a fraction of a defense. We do not think this is reasonable. The court in general terms described the accusation, and in as general a way referred to the defense. The jury could not have understood the criticised reference to an alibi as differing from a statement that the defense was sought to be established by proving an alibi; for, after referring to an alibi, the court correctly defined it, and it would be a reflection upon the intelligence of a jury to suppose, if the accused showed that, when the offense was committed, he was absent from that locality, nevertheless that it was possible for him to have committed it. When to the word “alibi” the court added the definition of that term, it was as though the instruction had stated that, as a part of his defense, the accused has intro