words "but whatever you tell me, I want you | lege of cross-examining them. No ruling was to tell the truth," do not constitute an inducement rendering the statements thereupon made involuntary and inadmissible. 2 Whart. Crim. Ev. § 654. This court, in State v. Nagle, supra, said: "We do not wish to be understood in what we have thus said, however, as deciding that a mere request, advice, or admonition to tell the truth will render a confession induced thereby inadmissible in evidence, for the strong current of authorities, as well as the better reason, is to the contrary. Am. & Eng. Encyc. L. (2d Ed.) vol. 6, p. 531, and cases cited; State v. Habib, 18 R. I. 558 [30 Atl. 462]." The remarks of Mr. Kinnecom to the defendant did not render the defendant's statements made to him inadmissible under this rule. [11, 12] Was the statement in English of Capuano to the defendant an inducement to make a false confession? If he had simply said, "If you did it, say so, and I will do all I can for you," the promise of assistance might raise a question as to the following statements being voluntary; but the added words, "If you didn't do it, don't say you did," naturally refute any suggestion in the preceding words of a recommendation to confess. The effect of similar expressions has been passed on by other courts. In Dotson v. State, 88 Ala. 208, 7 South. 259, an officer told a prisoner he would help him all he could, adding: "If you did do it, it might be best for you to say so; but, if you did not, stick to it that you did not." In Rafe v. State, 20 Ga. 62, 68, a sheriff told a prisoner if he did do it he had better acknowledge it; but, if he did not do it, not to acknowledge it. In State v. Kirby, 1 Strob. (S. C.) 155, the prisoner was told that if he was really guilty and confessed who were the right persons he might be pardoned, but was admonished not to confess if he was innocent. In none of these cases were the statements quoted held to make the confession which followed involuntary. requested and none made. The counsel did not himself offer to call the persons named or any others for examination. These witnesses were all afterwards called by the state in the progress of the trial, and they were cross-examined. There is obviously nothing in this occurrence to lead to the exclusion of the testimony of defendant's statements. State v. Jacques, 30 R. I. 578, 585, 76 Atl. 652. The twenty-third exception is overruled. [13] The twenty-fifth exception is to the admission in evidence of defendant's state ment to Judge Reuckert when arraigned. It is not necessary to consider this at length. "Where the accused is taken before a magistrate, * * * unless otherwise provided by statute, and whether cautioned or not, his confession is admissible in evidence against him unless * about by some inducement that renders the * * such confession was brought confession untrustworthy or has induced a false confession." 2 Whart. Crim. Ev. p. 1279. There is no suggestion of the happening of anything at the time of arraignment to render defendant's statement inadmissible. Wolfe v. Commonwealth, 30 Grat. (Va.) 833, 840; State v. Washing, 36 Wash. 485, 78 Pac. 1019. The previous consideration of the objection to the admission of the defendant's statements to Mr. Kinnecom the night of his arrest made on similar grounds renders it unnecessary to say more as to this particular exception, which is overruled. The twenty-third exception relates to the testimony of Mr. Kinnecom only, and the twenty-fifth to the testimony of Judge Reuckert. The twenty-eighth exception was taken to the refusal of the court to strike from the record all the testimony of all the witnesses for the state in so far as such testimony purported to give statements of the defendant of the nature of confessions or admissions on the same ground, namely, that these alleged confessions or admissions were not voluntary. This exception covers not only the testimony of Judge Reuckert and Mr. Kinnecom, but also that of Inspectors Ahearn and "Mere advice to confess if guilty, and, if not, to stand firm, does not render the confession involuntary." 2 Whart. Crim. Ev. § 654. See, also, cases in note 3 to section 832, 1 Wolf, and large portions of the testimony Wigmore on Evidence. The answer of the defendant to Mr. Capuano, "I didn't kill him, so I can't say I did," shows no indication of his being influenced to confess by what Capuano had said to him. We think there is nothing in these statements to the defendant to make his subsequent statements to Mr. Kinnecom involuntary. In the discussion before the court as to the admissibility of the testimony of Mr. Kinnecom as to his conversation with the defendant, the defendant's counsel expressed a desire to have the state then call Chief of Police Willis, Domenico Conca, and Antonio Capuano for examination as to what was done and said to the defendant the evening of March 30th before Mr. Kinnecom ar of Chief of Police Willis and of Domenico Conca, although to this testimony, apart from that of Mr. Kinnecom and that of Judge Reuckert, no objection was made when it was offered. The motion to strike out was made after practically all of the evidence in the case was in. The additional testimony pertinent to this exception relates to the happenings to the defendant, after his arrest and before the arrival of Mr. Kinnecom at the town hall, including in such happenings what was said to him or in his hearing by other persons, his surroundings when locked in the cell, and how these conditions affected or influenced him. The undisputed testimony shows: That he was questioned somewhat about Mather's watch while being length as to the whole affair after his arrival there before being taken downstairs to the cell. That on being taken down he said, "Going to leave me here?" On being told, "Yes," he said, "Take me upstairs, I will tell you all about it." That on being taken upstairs he said, "I don't know anything about it." Whereupon, after a brief questioning, he was locked in the cell. That he said several times in the course of these interviews that, if he could go home, he would tell all about it. That he cried at times, the testimony being conflicting as to extent of this and as to whether the cellroom was lighted while he was in the cell. Defendant himself tells of occurrences and remarks, which, if true, might tend to frighten him, and of his being persuaded by promises of assistance from some of the state's witnesses to make the statements he did relative to the manner of Mather's death. Upon these points the testimony was conflicting. 150 N. E. 1035; 7 Am. & Eng. Encyc. of Law, 863, 864. [16] Exception 31 was taken to certain remarks of the court made while discussion was in progress as to a question calling for testimony concerning "the character or reputation of the defendant." While, of course, it is always incumbent upon a court, and most of all in the heat of a trial when it may be annoyed by the persistence of zealous counsel in the face of its rulings already made, to avoid any utterance which would prejudice a defendant with the jury, the words objected to in this case are not such as to require comment, inasmuch as the defendant obtains a new trial on other grounds, and as there is small probability of the precise situation occurring again. The exception is overruled. [17] The thirty-third exception was taken to the refusal of the court to charge the jury as follows: The defendant lacked three months of be ing 14 years of age when the crime was com mitted. [14] Upon consideration of all the testimo"The state having produced no evidence that ny then in, pertinent to the question raised, the defendant possessed the discretion to judge the justice presiding was apparently of the between right and wrong, and the evidence beopinion that on the facts found by him to ing clear that the defendant was dull and backward under the age of 14, you are hereby diexist the statements of the defendant testi-rected to bring in a verdict of not guilty.' fied to were of a voluntary character. Upon the evidence relative to this question, as to which there was no dispute, we find that the testimony objected to was properly admissible. If, and in so far, as he considered the conflicting testimony in the formation of his opinion, we find no sufficient reason for differing with his conclusion. He had the opportunity of seeing and hearing the witness-doubtedly a backward boy, but he said in es, as we have not. Relative to the question of a confession being voluntary or not as affected by a conflict of testimony, in Com. v. Preece, 140 Mass. 276, 5 N. E. 494, the court says: "When there is conflicting testimony, the humane practice in this commonwealth is for the judge, if he decides that it is admissible, to instruct the jury that they may consider all the evidence, and that they should exclude the confession, if, upon the whole evidence in the case, they are satisfied that it was not the voluntary act of the defendant." See, also, Com. v. Cuffee, 108 Mass. 285; Com. v. Bond, 170 Mass. 41, 48 N. E. 756; Burton v. State, 107 Ala. 108, 18 South. 284; Stallings v. Johnson, 27 Ga. 572, 581, 583. The record shows that the court instructed the jury in this manner, and that no exception was taken thereto. There was no error | in denying the motion to strike out, and the twenty-eighth exception is overruled. [15] The twenty-ninth and thirty-second exceptions were taken to the denial of separate motions for the direction of a verdict in favor of the defendant. In our opinion the court's action on these motions was correct. We think a suitable case had been presented for determination by jury, and that the evidence, if believed to be true, might properly leave no doubt of the defendant's guilt. These exceptions are overruled. See Com. v. Williams, 171 Mass. 461, At 14 the presump'ion of criminal incapacity would cease. Obviously with a boy of average intelligence at his age on February 29th slight evidence might rebut that presumption. The defendant was un his cross-examination that he knew it was wrong to kill another boy. We think that the evidence in this case was sufficient to make the question of his capability to commit crime one for the jury. State v. McDonald, 14 R. I. 270. See, also, State v. Learnard, 41 Vt. 585, 589; State v. Guild, 10 N. J. Law, 163, 18 Am. Dec. 404, 416. This exception is overruled. Exception 34 lies to the additional instructions given to the jury in response to their request after they had been out a considerable time. We have carefully read and considered these instructions. Some members of the jury seemed confused as to how they should treat the so-called confessions. Several specific questions were asked the court by different jurors. The additional instructions were given in reply. We are not prepared to say that these instructions were ob noxious to the charge of an unfair reference to and use of the testimony. They were not a complete charge in themselves, but were obviously intended to be considered together with the original instructions. This exception is overruled. The fifth, sixth, seventh, eighth, ninth, tenth, eleventh, twelfth, thirteenth, fourteenth, sixteenth, and twenty-second exceptions are sustained. All the others are overruled and the case is remitted to the superior court for a new trial. (37 R. I. 107) the superior court, from which the case was BULLARD et al. v. REDWOOD LIBRARY certified under Gen. Laws 1909, c. 298, § 10, et al. (No. 4747.) In the construction of a will giving legacies of personal property situated in and subject to the inheritance tax laws of another state the question whether such tax shall be charged against the legacies given or not is one of the testator's intent, in view of all the circumstances. [Ed. Note.-For other cases, see Taxation, Cent. Dig. § 1712; Dec. Dig. § 891.*] upon an agreed statement of facts. Papers in the cause, with decision certified thereon, remitted with direction to enter a decree dis missing the appeal and affirming the decree of the probate court. William MacLeod, of Newport, for appellants Sheffield & Harvey, of Newport, fo appellees. JOHNSON, C. J. This is an appeal from a decree of the probate court of the town of 2. PROPERTY (§ 6*)—SITUS OF PERSONAL PROP-Middletown to the superior court of Newport county, certified to this court upon an agreed statement of facts. ERTY. Personal property has no locality, but is sold, transmitted, bequeathed by will, and descendible by inheritance according to the law of the owner's domicile, and not according to the law of the situs. [Ed. Note.-For other cases, see Property, Cent. Dig. § 3; Dec. Dig. § 6.*] town. The agreed statement of facts is as follows: The appellants are the executors of the will of Mary E. W. Perry, a domiciled resident of Middletown in this state, who died December 10, 1910, and, the will having been duly proved, are qualified to act as such by 3. WILLS (§ 436*)-PROBATE-PRESUMPTIONS. the decree of the probate court of MiddleA testator, domiciled in the state of Rhode Island, is presumed to have made his will in accordance with the existing laws of such state. [Ed. Note. For other cases, see Wills, Cent. Dig. 88 947-950; Dec. Dig. § 436.*] "The parties hereto, having adversary inter4. TAXATION (§ 889*) INHERITANCE TAX-ests in the construction of the will of Mary E. PERSONS LIABLE-EXECUTORS OR LEGATEES. W. Perry in the within cause, concur in statTestatrix died domiciled in this state, and ing a special case for the opinion of the Suher will was probated and her executors ap- preme Court upon the following agreed statepointed by a probate court of this state. She ment of facts: left personal property in Massachusetts, to get possession of which her executors were obliged to take out ancillary letters testamentary in Massachusetts and to pay inheritance taxes assessed against certain legacies. Held, that as the taxes were merely a charge on the particular property because of the jurisdiction of Massachusetts over it by reason of its situs therein, and not on the legacies given by the will, and as such foreign tax law could not regulate the exercise of testamentary power by a domiciled resident of this state, the amount of the tax was not a charge against the pecuniary legacies, but a part of the expenses of administration chargeable against the general estate. [Ed. Note. For other cases, see Taxation, Cent. Dig. § 1710; Dec. Dig. § 889.*] 5. EXECUTORS AND ADMINISTRATORS (§ 84*)COLLECTION OF ASSETS. It is the ordinary duty of an executor or administrator to collect and get in the assets of the estate. [Ed. Note.-For other cases, see Executors and Administrators, Cent. Dig. § 323; Dec. Dig. § 84.*] 6. WILLS (§ 587*)-"RESIDUE"-EXTENT. [Ed. Note.-For other cases, see Wills, Cent. Dig. 88 1279, 1281-1291; Dec. Dig. § 587.* "(1) That Mary E. W. Perry, late of the town of Middletown, deceased, died on the 10th day of December, A. D. 1910, leaving a last will and testament duly admitted to probate by the probate court of said town of Middletown (a copy of which said will is hereto attached and marked 'Exhibit A'). "(2) That in and by said will testatrix left St. Mary's Church, So. Portsmouth, fund, and sundry articles of furniture First Congregational Church, Grove- For other definitions, see Words and Phras-Marie Bernier. es, vol. 7, pp. 6169-6171; vol. 8, p. 7789.] George E. Bullard. Case Certified from Superior Court, New-Clark Burdick. port County. August Carlson.... $121,200. $50,000 2,000 1,000 5,000 10,000 5,000 4,000 3,000 1,000 1,000 1,000 1,000 1,000 2,000 2,000 1,100 500 10,000 10,000 10,000 500 100 Proceeding by George E. Bullard and oth- Jeremiah Lawton.. ers, executors of the will of Mary E. W.-the pecuniary legacies in all amounting to Perry, deceased, against Redwood Library and others, for construction of the will. From a decree of the probate court in favor of defendants, Bullard and others appeal to land, and the balance was within the common- | foreign inheritance taxes from the legacies paywealth of Massachusetts, but that of said bal- able to the respective legatees." ance, $135,000 was represented by notes secured by mortgages upon Rhode Island property, and $22,000 was represented by bonds of the cities of Providence and Woonsocket in the state of Rhode Island, though said notes and bonds were physically in Massachusetts. "(4) That in order to get possession of the assets of the estate within the commonwealth of Massachusetts the executors were obliged to take out ancillary letters testamentary in the probate court of Suffolk county, Mass., and in accordance with the requirements of the inheritance tax laws of Massachusetts then in force, to wit, St. 1909, c. 490, pt. IV, paid the following taxes assessed against the following legacies by the commonwealth of Massachusetts, and required to be paid before the said executors could gain control of the assets within that state: $2,500 [1] In the construction of this, as in any other will, the primary question is, in view of all the circumstances, one of intent. The general principle of law is, if possible, to asBoardcertain and give effect to that intent. man Pet., 16 R. I. 131, 13 Atl. 94. [2] The testatrix, at the time of her death, was a resident of this state. As is said in Eidman v. Martinez, 184 U. S. 578, 581, 22 Sup. Ct. 515, 516 (46 L. Ed. 697), in discussing the rights of a foreign state to tax the personal property of nonresidents: "It is still the law that personal property is sold, transmitted, bequeathed by will, and is descendible by inheritance according to the law of the domicile, and not by that of its situs." 100 200 "It is a general and universal rule that per- Total tax on pecuniary legacies.. $5,500 "(5) That the executors under the provisions of chapter 318. § 13. of the General Laws filed in the office of the probate clerk of the said town a statement setting out the names of the legatees and the amounts to be paid to each legatee, and in computing the amounts to be paid to each legatee the executors deducted in each case an amount equal to the inheritance tax paid to the commonwealth of Massachusetts (a copy of which said statement is hereto attached and marked 'Exhibit B'). "(6) That by a decree of said court entered May 19, 1913, said statement was amended by not allowing the deduction of the amount in each case of the Massachusetts inheritance tax, and said executors were ordered to pay said legacies in full as appears by the decree herein, from which decree the executors, the appellants, appealed to the superior court for the reasons stated in their reasons of appeal filed in this cause. "(7) That the said Mary E. W. Perry was at the time of her death a resident of the town of Middletown and state of Rhode Island. "Upon the foregoing agreed statement of facts the parties hereto concur in stating the following question in issue: "Inasmuch as the will of Mary E. W. Perry gave the pecuniary legacies to the legatees as hereinbefore stated without specifically exempting the legatees from any deductions, which of the two following contentions is correct? "I. The executors contend that the statement as originally filed should be allowed, and that the inheritance tax assessed by the commonwealth of Massachusetts against the legacies given to the respective legatees should be a charge against the legatees, and deducted from their legacies before payment to reimburse the estate for the amount advanced for their taxes. In Fellows v. Miner, 119 Mass. 541, 544, Gray, C. J., says: "But, the testator's domicile being in this commonwealth, the question of the validity of his disposition of his personal property, though to be executed elsewhere, is to be determined by the law of Massachusetts." [3] The testatrix is presumed to have made her will in accordance with the existing laws of this state. Missionary Society v. Pell, 14 R. I. 456. [4-6] In Kingsbury v. Bazeley, 75 N. H. 13, 70 Atl. 916, 139 Am. St. Rep. 664, 20 Ann. Cas. 1355, the court said: "In a gift of a pecuniary legacy of a certain amount, the apparent intention is to benefit the legatee to the full amount named. If such will is to be administered by the law of a jurisdiction imposing no inheritance tax, or none upon the class to which the legatee belongs, the purpose to transmit the full amount to such legatee would seem clear when the will is read in the light of the law by which it is to be given effect. The conclusion that a less sum was intended, because at the time of the testator's death some portion of his property happened to be within a jurisdiction imposing a tax upon such a transfer, seems strange and illogical." * * * In Re Hartmann's Estate, 70 N. J. Eq. 664, 667, 62 Atl. 560, 562, the court, in discussing the right both of the state of the domicile and the state where the property is located, says: "The great weight of authority favors the principle that as to personal property its situs, for the purpose of a succession tax, is the domicile of the decedent, and the right to its imposition is not affected by the statute of a foreign state, which subjects to similar taxation such portion of the personal estate of any nonresident testator as he may take and leave there for safekeeping, or until it should suit his convenience to carry it away." "II. The appellees contend that the statement allowed by the probate court of Middletown should be confirmed, and that the inheritance taxes paid to Massachusetts are part of the expenses of administration incurred in obtaining the assets of the estate, and that inasmuch as the distribution of the estate should If it be true that such taxation by a forbe made by the laws of the state of Rhode Is-eign state is immaterial when the law of the land of which the testatrix was a domiciled resident at the time of her death, the executors state of the domicile also imposes such a have no right to deduct any amounts paid for tax, it must be equally true when the state of the domicile has no statute imposing such essary to get in order to pay the legacies, a tax. and upon which there was a tax of 5 per cent. In Callahan v. Woodbridge, 171 Mass. 595, The question arose as to whether this tax 597, 51 N. E. 176, 177, the court says: "The legal right of the Legislature to make such a provision in regard to the property of a nonresident owner rests upon the fact that the property is within the state, and subject to its jurisdiction. * * * It covers the property within the jurisdiction. A ground for its exercise is that the property has the protection of our laws, and that our laws are invoked for the administration of it when a change of ownership is to be effected." was to be deducted from a pecuniary legacy (which was not given to an individual and did not come within the provisions of the will as to payment of inheritance taxes), or whether it was a proper charge against the estate. The court, on the ground that this matter was regulated purely on the basis of the domicile of the testator, held that the amount could not be deducted from the lega As is stated in Kingsbury v. Bazeley, su- cies. At page 17 of 75 N. H., at page 918 of pra: "As the foreign tax depends upon the jurisdiction over the property, and is not sustainable as a regulation of the exercise of testamentary power by a citizen of another state, it follows that the tax is merely a charge upon the particular property, and not upon pecuniary legacies given by the will." The only reason therefore for the executors paying the tax was the necessity of getting control of the property. Under the common law such a charge was proper as an expense of administration. In Perry v. Meadowcroft, 4 Beav. 204, the executors had incurred costs, charges, and expenses in getting in some costs due to the testator, and which had been specifically bequeathed. The executors presented a petition for reference to inquire whether they had properly incurred any costs, charges, and expenses in respect of these matters; and the question was whether these expenses ought to be borne by the general estate, or by the specific legatee out of his legacy. The Master of the Rolls said: "I consider it part of the duty of the executors to get in all the testator's estate, whether specifically bequeathed or otherwise; and I know of no instance in which the expenses have not been paid out of the general estate, as part of the expenses of administration." It is the ordinary duty of an executor or administrator to collect and get in the assets of the estate. Grinnell v. Baker, 17 R. I. 41, 49, 20 Atl. 8, 23 Atl. 911; Hendrick v. Probate Court, 25 R. I. 361, 368, 55 Atl. 881. The gift of a residue is subject to the precedent claims upon the estate. It is a gift of what remains after the debts and legacies are paid. Petition of Mathewson, 12 R. I. 145; Nickerson v. Bragg, 21 R. I. 296, 298, 43 Atl. 539. The only case directly in point upon the question presented that has come to our attention is Kingsbury v. Bazeley, 75 N. H. 13, 70 Atl. 916, 139 Am. St. Rep. 664, 20 Ann. Cas. 1355, supra. That case covers practically the same question as here. There the testatrix was a domiciled resident of New Hampshire, which had a 5 per cent. collateral inheritance tax. The will provided: "And I further direct that my executors pay from my estate any and all inheritance and succession taxes that may become due upon any legacies given by this will to individuals, so that said legatees may be benefited to the full amount of their respective legacies." Part of the estate was money or personal 70 Atl. (139 Am. St. Rep. 664, 20 Ann. Cas. 1355), the court, Parsons, C. J., says: "In a gift of a pecuniary legacy of a certain amount, the apparent intention is to benefit the legatee to the full amount named. If such will is to be administered by the law of a jurisdiction imposing no inheritance tax, or none upon the class to which the legatee belongs, the purnose to transmit the full amount to such legatee would seem clear, when the will is read in the light of the law by which it is to be given effect. The conclusion that a less sum was intended, because at the time of the testator's death some portion of his property happened to be within a jurisdiction imposing a tax upon such a transfer, seems strained and illogical. The sole ground upon which the collection of such tax by the state of the locus of the property, when different from that of the testator's domicile, can be sustained is the jurisdiction over the property which is given by its situs. Gardiner v. Carter, 74 N. H. 507, 69 Atl. 939; 51 N. E. 176. To hold that the effect of the Callahan v. Woodbridge, 171 Mass. 595, 597, foreign law is to reduce the legacy given by the will construed in accordance with the law of the testator's domicile is to permit the foreign citizen of this state. But the foreign law canlaw to regulate the testamentary capacity of a not extend beyond the jurisdiction which created it. If the rights in controversy depend upon the foreign law, those rights are determined in accordance with that law. MacDonald v. Railway, 71 N. H. 448, 52 Atl. 982, 59 L. R. A. 448, 93 Am. St. Rep. 550. But when the right involved depends, not upon the foreign law, but material and incompetent upon the question at upon that of the forum, the foreign law is imissue. It is obvious that the state has no jurisdiction over a right of succession which accrues under the law of the foreign state. That is something in which this state has no interest, and with which it is not concerned.' In re Bronson, 150 N. Y. 1, 8, 44 N. E. 707, 34 L. R. A. 238, 55 Am. St. Rep. 632. diction over the property, and is not sustain "As the foreign tax depends upon the jurisable as a regulation of the exercise of testamentary power by the citizen of another state, it follows that the tax is merely a charge upon the particular property, and not upon pecuniary legacies given by the will. That the foreign state may regulate the amount of the imposition made by it, or determine whether it will make any at all, by the character of the legacies giv en by the will, is immaterial. Having jurisdic tion over the property, it is for such state alone to determine upon what basis it will exact payment. While in giving effect to a foreign will courts are governed by the law of the testator's domicile, it has never been held that in the administration of an estate the courts of the testator's domicile would be governed by the law of the situs of personal property. The estate within the control of the court is to be administered according to the law of the state. The property to be administered embraces all that was originally within the state, or that the executor has been able to find elsewhere and bring |