(113 A.) William H. Sleeper, Co. Sol., of Exeter, for the State. Doyle & Doyle and Paul J. Doyle, all of Nashua, for defendant. PEASLEE, J. The charge here made is doing acts tending to incite others to interfere unlawfully with persons upon their way to their lawful business. Laws 1913, c. 211; Laws 1919, c. 155, § 2. The acts specified are, first, an assault upon a police officer; and, second, pointing out certain persons as employees of Chase, Chamberlain & Co., on their way to work, all while the streets were frequented by riotous persons, who were assaulting and threatening citizens, with intent to incite the rioters to interfere with said employees, do them bodily injury, and intimidate them. Exceptions to the admission and exclusion promote interference with the employees of of evidence are stated in the opinion. Chase, Chamberlain & Co. Any evidence which had any tendency to show that the defendant had such a design was admissible. Whether it was so remote in time or so indefinite as to declaration of purpose as to be of no substantial aid to the jury were questions for the trial court. Kier v. Parks, 79 N. H. 67, 104 Atl. 158, and cases cited. [6] The indictment charges that the ofSubject fense was committed October 18. to exception the state was permitted to introduce evidence of other acts done by the defendant upon October 20. Granting for the purpose of the argument the soundness of the defendant's claim that these later acts constituted a separate offense, there was no error in permitting them to be shown. They were intimately connected with the general project the defendant was charged with unlawfully promoting, and tended to show the purpose for which the acts charged against him in the indictment were done. Wig. Ev. § 302 et seq. It is no objection to their admissibility that they occurred after the acts complained of. State v. Call, 48 N. H. 126. [7] The exclusion, upon cross-examination of a witness for the state, of the statement that Chase "and all those men there" thought the defendant "ought to be taken care of," presents no question of law. The sole purpose was to discredit the testimony of the witness, upon the ground that his employers held certain views as to what ought to be done. How far such a line of inquiry should be pursued is a matter to be finally decided [1] Objection is made to the sufficiency of the indictment. It is claimed that the allegation of an assault upon Bowers as one of the means used by the defendant to assist in inciting unlawful intimidation is a charge of a separate and distinct offense. "The assault set forth in the indictment is not alleged as a substantive offense, but as a specific statement of the manner in which the respondents attempted to prevent Butler from voting." State v. Hardy, 47 N. H. 538. [2] The further objection that the indictment does not charge any offense is clearly untenable. As before stated, it alleges that the defendant did certain specified acts, and that thereby he assisted in doing acts with by the justice presiding at the trial. Turner the intent to incite others to violate a speci- V. Mfg. Co., 75 N. H. 521, 525, 77 Atl. 999. fied criminal statute. If these facts were proved, the conclusion of guilt would follow as matter of law. The indictment was sufficient, and the motions to quash were properly denied. The question raised by the state, whether the motions came too late, has not been considered. Assuming that they were made seasonably, the defendant takes nothing by them. [3] The statute makes it a crime to do or to assist in doing certain acts. Laws 1919, c. 155, § 2. As the indictment alleges assist ance only, it is said that there was error in convicting the defendant of doing rather than assisting. The record does not present this question. Whether there was a variance between the indictment and the proof is a matter about which no question appears to have been raised at the trial. [4, 5] The state was permitted to show that 10 days before the happening of the events set out in the indictment, the defendant, in urging certain foremen to quit work for Chase, Chamberlain & Co., said the contest was an important one; that "we are going to get Chase & Chamberlain into the union or we will shut them up." One element of the crime charged was the intent to [8, 9] The defendant now claims and argues an exception to permitting the state to show that he did not attend the trial of two men who were indicted for other assaults committed in Raymond on October 20. The record is made up of some 150 printed pages of testimony, and is said to "disclose the defendant's remaining exceptions." Other than this, the record contains no statement of what the exceptions to evidence are, and the defendant's brief does not refer to the page of the record where the exception relied upon is to be found. An examination of the transcript of the evidence does not disclose such an exception. The only place where mention of the matter is found is in the cross-examination of the defendant. If there appears that no objection was made to his testifying that he was not present at the other trial, but that exception was taken to his being called upon for the reason why he was absent. He stated that there were two reasons-that he knew nothing about the other assaults of October 20, and that extradition proceedings against him were pending at the time. The first reason was clearly without prejudice to him, for he had repeatedly testified to the alleged fact of his ignorance of the other affair of October 20. Whether the objection taken might have The second reason brought out the fact that been disposed of by the presiding justice upon when prosecuted in connection with these a finding that it was or was not harmless events, he resisted extradition. It merely in fact (State v. Wren, 77 N. H. 361, 364, 92 showed the manner in which he had conducted himself toward the charges made against him. This is a matter always open to proof and comment. Hersey v. Hutchins, 70 N. H. 130, 46 Atl. 33, and cases cited. [10] Exception was also taken to the solicitor's argument to the jury. It is not entirely clear, from the fragment of the argument reported, how far the statement varied from the evidence. Apparently the variance is an immaterial one. There are three Lyman brothers, Fred, Walter, and Ernest. All were present at or about the time of the affray. The state claimed that the assault was committed by a man in shirt sleeves and that the defendant was so dressed. Fred Atl. 170), or whether the statement, if material, could be treated as "mere misrecollection or accidental misstatement of the evidence" (Benoit v. Perkins, 79 N. H. 11, 19, 104 Atl. 254, 258), are questions that have not been considered. Attention has not been called to any other exceptions; and, if the record shows any, it is assumed that they are waived. Exceptions overruled. All concurred. (80 N. H. 24) MORSE v. CONVERSE et al. (No. 1707.) (Supreme Court of New Hampshire. Hillsborough. Jan. 4, 1921.) tion of thing itself; "Ademption." the thing itself so that there is nothing upon 2. Wills 767- No ademption by changed Where testatrix voluntarily put her property into the hands of a conservator to care for and use for her support, persons who were bequeathed savings deposits were entitled to a by the conservator without the knowledge or Liberty Bond purchased out of such deposits consent of the testatrix. testified that he was in his shirt sleeves, and that Foster had a coat on, and that, while neither he nor Foster struck any blows, Walter might have done so. Walter was 1. Wills 768—Legacy adeemed by destrucpresent throughout the trial, and testified that neither Foster nor any of the Lymans A legacy is adeemed by the destruction of struck Bowers. Ernest was not present until late in the trial, and testified that when he arrived on the scene of the trouble the assault was over. Walter was convicted of another assault committed on October 20. The erroneous statment in argument consists in attributing to Walter the statement made by Ernest that he did not see the assault. But Walter denied having any part in the affray as positively as Ernest did; the only substantial difference being that Ernest sought to strengthen his denial by the statement that he was not present. The testimony which was being argued was introduced on behalf of the defendant, and all came from the Lymans, who were his friends and associates. The argument was that the defendant attempted to charge the assault upon one who was shown to be innocent of it. The error is merely in stating the spe cific manner in which the person so charged denied his guilt. There is not enough of the arguments in the record to show whether this is or is not a matter of material consequence. If the defendant urged in argument that Walter was the guilty party, rather than the defendant, so that Walter's guilt was made an issue, the statement was material. If this matter was not finally made an issue, then the solicitor's argument merely comes to the charge that the defendant was shifting his defense about, and a misstatement as to a minor and uncontested detail thereof is immaterial. [11] Upon the record as it stands it does not appear that the departure from verbal accuracy was important. The burden is upon the excepting party to show error. As this is not shown by the present record, the exception must be overruled. Petition for advice by Francis A. Morse, executor of the will of Rhoda Converse, deceased, as to the claims of Eben Converse and others. Advice given, and case discharg ed. The will, dated April 3, 1913, made to different individuals bequests of the deposit with accumulated interest made by the testator in each of two savings banks, describing each by its number. Upon the testator's petition the plaintiff, Francis A. Morse, was August 7, 1917, appointed conservator of her property by the probate court under chapter 56, Laws 1915. She died March 30, 1919, without having been adjudged insane. In ignorance of the provisions of the will the conservator in 1917 withdrew $500 from each of the savings banks at the request of the surety upon his official bond and bought therewith a Liberty Bond of the first issue, and used the balance of the deposits with the deposit in another savings (113 A.) bank in the testator's necessary support. The Wills, p. 532. The authority cited in support balance of the estate in the hands of the of this statement (Shaftsbury v. Shaftsbury, conservator consisted of railroad stocks and 2 Vern. 747) does not, however, go farther bonds. The executor now has the Liberty than to suggest that, if the change be wrongBond bought by him as conservator. The fully or fraudulently made without the question submitted is whether the legatees knowledge or approval of the testator, there of the savings bank deposits take anything would be no ademption. by the bequests to them. In Ford v. Ford, supra, conflict in the au Kittredge & Prescott, of Milford, and Her-thorities is suggested as to whether the pre bert R. Morse, of Boston, Mass., for the lega tees of the Savings Bank Deposits. Walter E. Kittredge, of Nashua, for the residuary legatees. PARSONS, C. J. "A legacy is specific when it is a bequest of a specific article of the testator's personal estate, distinguished from all others of the same kind; as, for instance, of a particular horse, or piece of plate, money in a purse or chest, a particular stock in the public funds, or a bond or other security for money." Loring v. Woodward, 41 N. H. 391, 394; Ford v. Ford, 23 N. H. 212. butted by evidence of a contrary intention, but the opinion approves the English rule sumption in favor of ademption might be re that the only question is whether the specific thing remains or not at the death of the testator, and that the presumption of ademption is not to be rebutted by evidence of a contrary intention. The case, however, holds that, though certain changes were made by the testator in the form of the securities bequeathed, the change was not sufficient to require a holding that the legacy was adeemed. In short, the evidence did not satisfy the court the testator intended to revoke the gift made by the will. Chase v. Moore, 73 N. H. 553, 64 Atl. 21; Gardner v. Gardner, 72 N. H. 257, 56 Atl. 316; Spinney v. Eaton, 111 Me. 1, 87 Atl. 378, 46 L. R. A. (N. S.) 535. Whether the evidence of revocation furnished by a change in form of securities bequeathed can be rebutted by evidence as to the testator's intention in making the change or not, it is clear that there can logically be no ademption of the legacy unless the change is itself of such a character as to establish a change in testamentary intention. Consequently a change of which the testator was ignorant and which he did not authorize is not evidence of a change in such intent. See Wilmerton v. Wilmerton, 176 Fed. 896, 100 C. C. A. 366, 28 L. R. A. (N. S.) 401; Jenkins v. Jones, L. R. 2 Eq. Cas. 323. [1] "Legacies which are specific are said to be adeemed, when the particular thing given is either wholly lost, destroyed, or disposed of by the testator during his life, or its form so changed as not to remain in specie. Thus, if the thing given as a specific legacy be sold by the testator, or otherwise disposed of during his lifetime, or its form be changed, it is lost or destroyed. So that, if the subject-matter of the legacy either ceases to be the property of the testator, or is so changed during his life as no longer to be susceptible of identification, the legacy is said to be adeemed or gone." 2 Red. Wills, P. 528; Gardner v. Gardner, 72 N. H. 257, 56 Atl. 316; Drake v. True, 72 N. H. 322, 56 Atl. 749. "It is well settled that, if a debt [2] In this case the testator voluntarily specifically bequeathed be received by the tes- put her property into the hands of a conservtator, it will be adeemed; for then there willator to care for and use for her support. exist nothing for the will to operate upon." There is no suggestion that what the conFord v. Ford, 23 N. H. 212, 218. If the tes- servator did in the use of the money on detator in her lifetime had withdrawn the bank posit was not reasonable and done in good deposits and used or reinvested the fund, faith. As to the portion of the fund consumthere can be little doubt upon the authorities ed the legacy is adeemed both because what that the legacies would be by her action de- was done being reasonable was authorized by stroyed. A legacy is adeemed by the destruc- the testator and because nothing has come to tion of the thing itself so that there is noth- the executor's hands upon which the will ing upon which the will can operate or by can operate. The investment in the Liberty such change in its character voluntarily made Bond was not made to advantage the estate, by the testator as indicates a change of tes- was not known to or authorized by the testamentary purpose, an intentional partial tator. The change therefore furnishes no evirevocation of the will. Hoitt v. Hoitt, 63 N. dence of an intentional revocation by her. H. 475, 497, 3 Atl. 604, 56 Am. Rep. 530. As so much of the fund as was invested in "But no ademption will take place where the the bond is identified as a part of the bechange in the thing bequeathed is effected by quests to the legatees of the bank deposits, operation of law, as where a fund is convert- the executor is advised that the persons now ed into one of a different description by act entitled as legatees to such deposits are enof parliament. Nor will it operate to adeem titled to the Liberty Bond now in his hands the legacy, where the fund has been transfer- in proportion to the investment from each red tato another fund by the trustee without fund. As the same amount was drawn from persons who would have received each deposit| missed the petition, subject to exception by except for the change are equal owners of the the plaintiff. Order of dismissal set aside. bond. Case discharged. All concurred. (80 N. H. 70) ATTORNEY GENERAL ex rel. HIGHWAY AGENTS OF EASTON V. BROOKS. (No. 1717.) George W. Pike, of Lisbon, for relators. Raymond U. Smith, of Woodsville, for defendant. Oscar L. Young, Atty. Gen., for State Highway Department. PARSONS, C. J. Chapter 29, Laws 1893, abolished the existing subdivision of towns into highway districts and made the town the (Supreme Court of New Hampshire. Grafton. unit for the performance of the highway con 1. Officers Feb. 1, 1921.) 7-Power to direct officer does not include power to remove. Power to direct an officer in the execution of his office does not include the power arbitrarily to remove him from office by the appointment of another to perform the duties of the office. 2. Highways105(1)—Two highway systems exist, one including state highways and stateaided highways, and the other including remaining highways. Two highway systems have existed in the state since 1905, one the so-called state highway system, which includes state highways and state-aided highways, and the other such highways as are not state highways or state-aided highways (Laws 1915, c. 48, § 2). 3. Towns 30, 31-Presumed that duty or authority imposed on town is to be performed or exercised by officers to whom like duties or authority appertain. When the Legislature imposes a duty or authority on a town without special provision as to manner of execution, the presumption is it was intended the duty should be performed or the authority exercised by the officers to whom duties or authority of the same character by law appertain. 4. Highways 93-Town selectmen cannot arbitrarily appoint highway agent for certain roads. Under Laws 1893, c. 29, as amended by Laws 1915, c. 171, and Laws 1905, c. 35, town selectmen have no authority without instructions to appoint a highway agent to take charge of certain highways, "state-aided" or not, so as to deprive the duly elected highway agents of the town of the entire authority vested in them by the town. Quo warranto by the Attorney General at the relation of the Highway Agents of Easton against the defendant Brooks, appointed by the selectmen of Easton, with the consent and approval of the State Highway Commissioner, to take charge of and to do the work of improving and maintaining certain stateaided highways in the town. The parties agree to any change in the form of action which may be necessary. The court ruled the defendant's appointment valid and dis structing and maintaining duty imposed upon the town. ors, highway agents elected by the town In place of highway surveyby the town or of a vacancy in the office the were provided. In case of a failure to elect selectmen were authorized to appoint, but no person could at the same time hold the offices of highway agent and selectman. Id. §§ 4, 5. Section 3 of the act which provided for the election of such officers and defined their powers and duties was amended and re-enacted in 1897 (Laws 1897, c. 67), 1913, (Laws 1913, c. 14), 1915 (Laws 1915, c. 171) and 1917 (Laws 1917, c. 49). The amendment of 1917 is not material, but in 1915 (c. 171) the whole section was devised, rearranged, and errors in former amendments corrected. The section was then re-enacted; all former legislation relating thereto being repealed. The material part of this act, the existing law on the subject, is: by ballot one or more, not exceeding three, "At the annual election, each town shall elect highway agents, who, under the direction of the selectmen, shall have charge of the construction and repair of all highways and bridges within the town, and shall have authority to employ the necessary men and teams, and purchase timber, planks, and other material for construction and repair of highways and bridgannual election to instruct its selectmen to * or the town may vote at the direction of the selectmen, shall have the same appoint an expert highway agent, who, under power and perform the same duties as a highway agent if elected by the town." es, * If the defendant, Brooks, can qualify as an "expert highway agent," the town have not instructed the selectmen to appoint one. The relators were duly elected by ballot by the town and there is no vacancy. If the selectmen can remove certain highways from the jurisdiction of the agents in the absence of special authority as to such highways, they could in the same way treat all the highways in the town. They could arbitrarily deprive the duly elected officers of the town of the entire authority vested in them by the town. [1] Occasion has not arisen to define the division of power between selectmen and (113 A.) highway agents in the performance of the official duty of highway construction and repair. O'Brien v. Derry, 73 N. H. 198, 60 Atl. 843; Robertson v. Monroe, 79 N. H. 336, 109 Atl. 495. Whatever that division may be, it is obvious that power to direct an officer in the execution of his office does not include the power arbitrarily to remove him from office by the appointment of another to perform the duties of the office. This is not claimed, but it is contended that as to the construction and maintenance of "state-aided" roads special provisions except them from the general powers given agents; in other words, that when in 1915 the Legislature revised, rearranged, and re-enacted the statute as to highway agents and used the expression twice repeated "all highways" as descriptive of the subject-matter within their jurisdiction, "state-aided" roads were understood to be excepted. Prior to this enactment all the legislation here material in relation to improved highways by state aid had been adopted, and it is a consideration of great weight in answer to the contention that at this time no such exception was expressly made. "All highways in any city or town improved by the expenditure of said joint fund shall thereafter be maintained by the city, town or place within which it is located at the expense of the town." This duty of maintenance being placed upon the town, it must have been understood, in the absence of provision to the contrary, that the town would perform the duty through the agencies provided by general law for the execution of such work, the highway agents under the direction of the selectmen. The section further provided that "In case any town or place shall neglect to make repairs ordered by the Governor and council, such repairs shall be made under the direction of the Governor and council, at the expense of the state and the cost thereof shall be added to the state tax for that town, or place for the next year." But there is no suggestion that because of neglect by the town or otherwise the matter of maintenance had been directly committed to the selectmen. In 1911 section 8 of chapter 35, Laws of 1905, was repealed but immediately re-enacted with the following addition: * * the Governor and council to such cities, towns 119. It is assumed that the state-aided roads in Easton are non-trunk lines, and it may be assumed that under this section assistance has been granted the town by the Commishas succeeded to the powers and duties of sioner of Highways, who in the first instance the Governor and council in the state's scheme of road improvement. Laws 1915, c. 103. Under these assumptions the question is as to the expenditure of a fund for road maintenance provided in part at least by the state. But this is not the joint fund for road im [2] It is said that "two highway systems have existed in New Hampshire since 1905, one the so-called state highway system, which includes state highways and state-aided highways, and the other such highways as are not state highways or state-aided highways." This claim is well supported. Laws 1915, c. 48, § 2; Kelsea v. Stratford, 79 N. H. 273, 108 Atl. 298; Tilton v. Sanbornton, 78 N. H. 389, 100 Atl. 981; Grace v. Belmont, 78 N. H. 112, 97 Atl. 221; Opinion of Justices, 77 N. H. 606, 92 Atl. 550. The question is whether the construction and repair of "stateaided" highways has by the road improvement legislation been placed in the immediate charge of the selectmen instead of the highway agents. The object of the act of 1905 (c. 35) was stated in section 1 to be "to secure a more uniform system for the improvement of main highways throughout the stare, by the co-operation of the municipali-provement created by special action of the ties and the state." "The general supervision, control, and direction of said business so far as the different municipalities are concerned" was committed "to the selectmen of organized towns." Id. § 2. This apparently gave to selectmen as to the proposed improvements precisely the same control that they had under chapter 67, Laws 1897, over highways generally which are placed in charge of the highway agents "under the direction of the selectmen." Sections 3 and 4 of the act of 1905 provided for the creation of a joint fund raised in part by the town and in part contributed by the state for road towns under sections 3, 4, 5, 6, c. 35, Laws 1905, the expenditure of which is regulated by section 7 of the act amended and re-enacted. Laws 1907, c. 60, § 1. The duty of maintenance by the town to the satisfaction of the Governor and council still remained with the town to be performed by the officers by law intrusted therewith. The effect of special provisions in the act creating the office of Highway Commissioner (chapter 103, Laws 1915), passed at the same session but prior to the act as to the powers of highway agents (Laws 1915, c. 171), is hereafter considered. But neither in that or in any legislation |