for the sale of cattle, the sale was of a herd containing 262 head, more or less, and it was held that an offer to deliver 178 head was not in compliance with the contract, and we said: "We understand the phrase 'more or less' as having been used by the parties to cover such trifling deficiencies in number as might be caused by the ordinary casualties of death or loss." These authorities are in point here. We also think the contracts show upon their face that the parties contemplated the lighting of and payment for the definite number of lamps, 2,800 or 7,000, simply recognizing, by the use of the words "more or less," the probable result that one or more of the lamps, for one or more nights during a month, might not be lighted; and the agreement on the part of the city in effect is to pay for the whole number of lamps at the rate of $11.48 per annum, at the end of each month, simply taking credit upon that amount for lamps not lighted, if any, of which the required notice had been given. Our conclusion, therefore, is that this contract, properly construed, is not materially different from the contracts under consideration in the McDonald Case, and that for the reasons there given the decree of the superior court was properly entered. It will accordingly be affirmed. Decree affirmed. CARTWRIGHT, C. J., and PHILLIPS and CARTER, JJ., dissenting. (153 Ind. 631) MERRIMAN et al. v. MERRIMAN. (Supreme Court of Indiana. Dec. 20, 1899.) WILLS - MENTAL CAPACITY - UNDUE INFLUENCE-BURDEN OF PROOF-GENERAL VERDICT-HARMLESS ERROR. 1. That decedent, prior to making a will, was of unsound mind, of apparent permanency, does not cast the burden on proponents to prove his mental capacity, or a lucid interval, at time of making the will. 2. Where, in a will contest, issue was joined as to testator's mental capacity and alleged undue influence, and a general verdict returned in favor of contestant, as well as a special finding of want of testamentary capacity, erroneous instruc tions as to burden of proof of mental capacity could not be said to be harmless; the record not affirmatively showing that the issue of undue influence was included therein, since the general verdict might have been based on mental capacity only. The burden is on appellee to show that an error pointed out by appellant is harmless. Appeal from circuit court, Whitley county; Joseph W. Adair, Judge. Action by Clio Merriman, by her next friend, against Lulu J. Merriman and others. From a judgment for plaintiff, defendants appeal. Reversed. Marshall, McNagny & Clugston, for appellants. John H. Aiken, Benton E. Gates, and Henry Colerick, for appellee. BAKER, J. Appellee, a minor, by her next friend, began this action to contest the will of James S. Merriman, deceased. The de fendants (appellants) are Lulu J. Merriman, the widow, and Martha, decedent's minor daughter by Lulu J. Merriman, and John F. Mossman, administrator with the will annexed. Appellee is a daughter of decedent by a former wife. The contest was based on two grounds: (1) That the testator was of unsound mind; (2) that the will was procured by undue influence. Appellants answered by a general denial. The jury returned a general verdict in favor of appellee, and answered certain interrogatories to the effect that the decedent lacked testamentary capacity. No interrogatories on the issue of undue influence were submitted. The error assigned is the overruling of appellants' joint and several motion for a new trial. The court charged the jury in several instructions that if the decedent, prior to the date of the alleged will, was of unsound mind, of apparent permanency, the burden would fall on the defendants to prove, by a preponderance of the evidence, that at the time the alleged will was made the decedent possessed sufficient mental capacity to make a will or had a lucid interval. These instructions were erroneous. Roller v. Kling, 150 Ind. 159, 49 N. E. 948; Young v. Miller, 145 Ind. 652, 44 N. E. 745; Teegarden v. Lewis, 145 Ind. 98, 40 N. E. 1047, and 44 N. E. 9. Appellee insists that the error is harmless, because it enters into the issue of mental capacity only, and the judgment is supported by the jury's finding on the issue of undue influence. The verdict is for the appellee, without disclosing whether the jury based it on one or both issues. If the general verdict stood alone, the judgment would have to be reversed, because the record would not affirmatively show that the error was harmless. Here the interrogatories make it clear that the jury found for appellee upon the issue of mental capacity. If the jury believed that the evidence sustained that issue, it was their duty to return a general verdict for appellee, no less than if they found both issues established. Therefore, although the issue of undue influence was properly submitted to the jury, and may actually have been decided in favor of appellee, the record does not affirmatively prove that the issue was included in the general verdict. If there had been a special verdict covering both issues, or if interrogatories had disclosed that the issue of undue influence had been found in appellee's favor, this case might be ruled by the decision in Putt v. Putt, 149 Ind. 30, 48 N. E. 356, and 51 N. E. 337. Appellants have pointed out an error entering into the verdict. The jury may have found want of testamentary capacity solely by reason of the erroneous charge. It was incumbent on appellee to prove by the record that the error was harmless. Because the record does not show this, the judgment is reversed, with directions to grant appellants a new trial. (153 Ind. 578) WALTERS v. WARD. (Supreme Court of Indiana. Dec. 14, 1899.) MORTGAGES-VENDOR'S LIEN-PRIORITY MERGER-RELEASE. Defendant, holding a mortgage for $6,100, principal and interest, against plaintiff's land, agreed to receive the land in consideration of the mortgage debt, and to convey it to a third person for $7,300, to be paid in time payments. Defendant was to retain the mortgage and notes executed by plaintiff, who was to receive $1,200, the excess between the mortgage debt and the selling price. Payments by the vendee were to be applied-First, to the payment of interest on the mortgage notes; second, to the payment of the $1,200 due plaintiff; and, third, to the payment of the principal of the mortgage notes. Under this agreement the vendee, after certain payments, took possession of the land, executing a mortgage thereon in favor of defendant. Afterwards, under an agreement with defendant, made without the knowledge of plaintiff, the vendee surrendered possession to defendant, and secured a release of the mortgage executed by him. Held, that the land was subject to the payment of the claims in the order recited in the agreement, and this irrespective of whether or not the original mortgage was merged in the agree ment, or whether the defendant had or had not released the vendee's mortgage. Appeal from circuit court, Noble county. Action by John H. Ward against John E. Walters and one Stout. From a judgment in favor of plaintiff, defendant Walters appeals. Affirmed. R. P. Barr and Thomas L. Graves, for appellant. H. C. Peterson and L. W. Welker, for appellee. MONKS, J. Appellee sued appellant and one Stout to enforce an equitable lien on real estate. Appellant's demurrer to each paragraph of the complaint was sustained to the third and fourth, and overruled as to the other paragraphs. Appellant filed an answer in two paragraphs. Appellee's demurrer to the second paragraph of said answer was sustained. At the request of appellant the court made a special finding of the facts, and stated conclusions of law thereon, to each of which appellant excepted. Over appellant's motion for a new trial, judgment was rendered in accordance with the conclusions of law. The assignment of errors calls in question each conclusion of law, and the action of the court in overruling appellant's demurrer to the first, second, fifth, sixth, and seventh paragraphs of the complaint, in overruling the motion for a new trial, and in sustaining the appellee's demurrer to the second paragraph of answer. The questions presented as to the sufficiency of the pleadings and the correctness of the conclusions of law are the same, and a determination of the latter, therefore, necessarily determines the former. It appears from the special finding: That on November 13, 1895, there was due appellant from appellee $6,000, principal and interest, for which appellant held the promissory notes of appellee, secured by a mortgage executed by appellee and wife to appellant on a quarter section of real estate in Noble county, Ind., which was the first lien thereon; that appellee was offered $7,300, in payments, for said real estate, by one Stout, and, desiring to pay said indebtedness of $6,000 to appellant, including a note held by appellant for $100, which was not in all secured, he offered to convey said real estate to appellant, by a deed of general warranty, for said sum of $7,300, providing appellant would sell the same to said Stout for the same sum, and apply the proceeds of said sale as provided in a written contract executed by said parties. Appellant accepted said proposition, and on said November 13, 1895, appellee and wife executed to appellant a warranty deed of said mortgaged real estate; and as a part of the transaction, and at the same time, appellant, appellee, and said Stout executed a contract in writing which provided that appellee and wife had on said day sold and conveyed said real estate to said appellant for $6,100, the amount of the principal and interest of said mortgage held by Walters, "on condition that said Walters shall sell said real estate to said Stout for the sum of $7,300, which shall be paid as follows: $600.00 a year until the full payment of said consideration of $7,300.00. The first year's payment shall be $500.00, on or before October 1, 1896, which shall be secured, by security to be approved by said Walters, within ten days from the date hereof, otherwise this contract shall not be binding in favor of said Stout; and $100.00 shall be paid at the end of the first year. Said moneys paid annually shall be applied as follows: Such payments shall be first applied and indorsed on the mortgage notes now held by said Walters against said land, until all the interest or interest notes on the mortgage shall be fully paid, and the accruing interest promptly paid when due. Then, before any application is made of said annual payments on principal of said mortgage, such payments shall be applied from time to time on said sum of $1,200.00. payable to said Ward. Said sum of $1,200.00 coming to said Ward as aforesaid shall draw six per cent. interest from this date. It is further agreed that when said Walter's interest shall be paid in full, and said Ward's claim of $1,200 shall be fully paid, and the principal of Walter's said mortgage reduced to $1,000.00, and all taxes paid on said land that are due and payable, then the said John E. Walters binds himnself, his heirs or assigns, to convey to said Stout, his heirs or assigns, a good and sufficient deed of general warranty for said land. The said Stout, his heirs or assigns, at the same time to execute to said Walters a mortgage on said land tc secure the residue of said original mortgage and notes given by Ward to said Walters. Such residue of the mortgage notes to be paid and satisfied only in the manner mentioned aforesaid; that is, by the payment of $600.00 annually. The taxes of 1895 on said land to be paid by said Ward, and subsequent taxes thereon to be paid by said Stout; Stout to have the wheat now growing on the land, and to keep the improvements insured for $1,600.00 until the consideration is fully paid, and to have full possession April 1, 1896." This contract was duly acknowledged before a notary public, and recorded in the recorder's office of Noble county, Ind. That at the time of the execution of said contract appellant retained possession of the notes and mortgage on said real estate executed by appellee, and it was understood and agreed between appellant and appellee and said Stout at the time of the execution of said contract that said appellant was to retain possession of said notes and mortgage, unsatisfied, until the same were paid and discharged by said Stout; and appellant did so retain possession of said mortgage, with the intention that they should remain alive and unsatisfied and unpaid. That said Stout did, within ten days from the execution of said contract, secure said first payment by executing a chattel mortgage on the 20th day of November, 1895, securing one note for $500, due October 1, 1898. and one for $100, due November 13, 1897. That said chattel mortgage also secured the payment of $600 mentioned in said contract, which matured November 13, 1897. Said Stout took possession of said real estate under said contract of sale, with the knowledge and consent of appellant and appellee, January 27, ❘ 1896. Before October 1, 1897, said Stout had paid $301 on said real estate, and on said day he paid appellant $554 in addition thereto, and surrendered and delivered to appellant the possession of said real estate, together with the crops growing thereon, in consideration of which appellant released said Stout, and delivered up to him said notes and chattel mortgage, and released said mortgage, and took possession of said real estate as the owner thereof, and is still in possession thereof. That appellee had no notice or knowledge of the release of said Stout until long thereafter. That after giving credit upon the interest due Walters, as provided by said contract, for the said sum of $855 paid by Stout, there still remains unpaid $1,333, interest due appellant. That there is due Ward under and by virtue of said contract the sum of $1,200, and interest thereon, $182,-in all, $1,382. That there is due appellant on his principal, under said contract, $1,654. The court stated as conclusions of law: (1) That the sum of (1) That the sum of $1,333, interest due appellant, is a first lien on said real estate; (2) that the $1,382 due appellee is a second lien on said real estate; (3) that the said $4,654 principal due appellant is a third lien on said real estate; (4) that said Stout has no interest in and to said real estate, except such as is subject to the claims of appellant and appellee; (5) that said real estate should be sold to pay the claims as set out. Appellant insists that, under the written contract, appellant held the mortgage notes for $6,100, unpaid and unsatisfied, and that they were the first lien on said real estate, and that the $1,200 due appellee could not in any manner become a lien on said land prior to appellant's mortgage. It is true that when appellee owned said real estate the sum of $6,000, payable to appellant, and secured by a mortgage on said real estate, was the first lien thereon; but, when he conveyed the land to appellant under said contract, it was expressly stipulated that the purchase money to be paid by Stout for said land was to be applied first to the payment of the interest on the said mortgage notes signed by appellee, held by appellant; that after the payment of the said interest, before any payments made by Stout should be applied on the principal of said mortgage notes, the $1,200 of the purchase money for said land, with interest, payable to appellee, should be paid. By this contract the priority of the liens of appellant and appellee were fixed. Appellant, appellee, and Stout had the right, as between themselves, to agree that, after the payment of the interest due appellant upon the notes signed by appellee, appellee should be paid the $1,200 and interest, his part of the purchase money, before any part thereof should be applied upon the principal of said notes held by appellant, even if there was no merger of said mortgage lien, and the same was kept alive. Loewen V. Forsee, 137 Mo. 29, 39, 44, 38 S. W. 712; Malmgren v. Phinney, 50 Minn. 457, 52 N. W. 915, 18 L. R. A. 753; Morgan v. Kline, 77 Iowa, 681, 42 N. W. 558; 1 Jones, Mortg. 608. Conceding, without deciding, that there was no merger of the mortgage lien of appellant on said real estate, it is clear, under said contract, that the lien of the $1,200 purchase money and interest due appellee was prior to the lien of the principal of the notes secured by said mortgage executed by appellee to appellant. It is unnecessary, therefore, to decide whether or not when appellant received the deed from appellee for said real estate the mortgage lien of appellant was merged in the fee simple, or, if there was no merger, then whether there was when Stout surrendered the land to appellant on October 1, 1897, because the conclusions of law, and the judgment rendered thereon, give appellant the same relief that he would have been entitled to if there was no merger. As appellee had no notice or knowledge of the agreement between appellant and Stout by which appellant repurchased said real estate, his rights are the same as if said contract had not been made. This was the theory upon which the court tried the cause and stated the conclusions of law. Upon this theory, it was proper to find the amount of interest due appellant after deducting the payments, amounting to $855. made by Stout, and the amount due appellee, principal and interest, as well as the principal sum due appellant. The notes and mortgage executed by appellee to appellant are mentioned in said contract, and the amount of principal and interest due appellant under said contract is determined by said notes. Even upon appellant's theory, therefore,--that there was no merger of the mortgage lien, and that what was due him was secured by said mortgage, he was not injured by the finding that the several sums due appellant and appellee were due under said. contract. The conclusions of law are clearly right, upon the facts found, and in harmony with the written contract of the parties, which cannot be varied, changed, or contradicted by any previous statements or negotiations, or any contemporaneous parol agreement or understanding. Bever v. Bever, 144 Ind. 157, 161, 41 N. E. 944, and cases cited; Cole v. Gray, 139 Ind. 396, 38 N. E. 856; Hostetter v. Auman, 119 Ind. 7, 20 N. E. 506; Philbrook v. Emswiler, 92 Ind. 590; King v. Insurance Co., 45 Ind. 43; Coy v. Stucker, 31 Ind. 161. Appellant insists that the finding that appellant released Stout from his contract to purchase and pay for said land is not sustained by the evidence. This finding is not material; for, if there had been no finding on said question, or if it was expressly found that Stout was not released from said contract, the conclusions of law stated by the court would not be erroneous. Appellant could not release or discharge Stout from his liability to appellee; and the conclusions of law and judgment rendered thereon are correct, so far as the lien of appellant and appellee, and their priority and order of payment, are cor.cerned, without regard to whether Stout holds said real estate under his contract, or has surrendered the same to appellant, or has been released by appellant from his liability to him. Whether or not appellant's contract of November 13, 1895, was an improvident one on his part, or whether he could or should have foreseen all the consequences thereof, we are not required to determine. We can only say that his lien on, and right to and interest in, said real estate, are fully protected by the judgment rendered, and he has no just grounds for complaint. The death of appellant after the submission of this case being shown, the judgment is affirmed as of the date of submission. (153 Ind. 560) BRIDGEWATER v. STATE. (Supreme Court of Indiana. Dec. 12. 1899.) SUFFI HOMICIDE EVIDENCE OF MALICE CIENCY-INSTRUCTIONS-APPEAL-ATTACHING WEAPONS TO BILL OF EXCEPTIONS. 1. Accused was jealous of his wife. who, on the day preceding the night of the homicide, had gone, without accused's knowledge, to a picnic with deceased and several others. On their return at night, deceased accompanied her to the residence where she was employed, some distance from her own home. Deceased stood. talking to her for a few minutes, when accused approached, and, without speaking, clinched deceased. They struggled for a short time, during which deceased was cut several times, one cut penetrating his heart, resulting in death. Accused's distrust of his wife had involved him in difficulties previous to the homicide. Held suf55 N.E.-47 ficient to justify a finding that the killing was done purposely and maliciously. 2. On a trial for murder, an instruction that if accused willfully killed deceased, but it was done without malice, and without premeditation, voluntarily, he was guilty of manslaughter, is not prejudicial to the accused because of the use of the word "willfully," since it renders the instruction the more favorable to him. 3. An instruction that voluntary manslaughter is the unlawful killing of a human being, without malice, voluntarily, on a sudden heat, as where, on provocation, the passion has been aroused, and the act is committed before it has cooled, is erroneous; for it fails to qualify "provocation with the term "adequate or sufficient." 4. On a trial for murder, a refusal to instruct that the jury "are the sole and exclusive judges of the law and of the facts; it is the duty of the court to instruct the jury in the law, but his instructions are as advisory only, and you mav disregard them, and determine the law for youselves," is proper; for though the court in a criminal case, when requested, must instruct that the jury may determine the law and the facts, it is not required to neutralize the effect of its instructions by authorizing the jury to disregar.1 them. 5. It is improper to attach clothing of accused, and the weapon with which the homicide was committed, to the bill of exceptions, as verbal descriptions of such articles, when in evidence, are sufficient. Appeal from criminal court, Marion county: Frank McCray, Judge. William Bridgewater was convicted of murder in the second degree, and he appeals. Affirmed. Kealing & Hugg, John C. Ruckelhaus, ani John W. Bowles, for appellant. W. L. Taylor, Atty. Gen., A. E. Dickey, Merrill Moores, C. C. Hadley, and Max D. Aber, for the State. DOWLING, J. Indictment for murder in the first degree. Trial, and verdict of guilty of murder in the second degree. Motion for new trial overruled, and judgment on verdict. Defendant below appeals. The insufliciency cf the evidence to sustain the verdict, and error of law in giving and refusing to give instructions, are the grounds relied upon for a reversal of the judgment. Counsel for appellant: do not deny that the evidence supports a finding of guilty, but they insist that it does not sustain a finding of guilty of murder in the second degree. The difference between murder in the second degree and manslaughter, as these crimes are defined by statute, is that in the former the killing is don purposely and maliciously, but without premeditation; in the latter, the killing is unlawful, without malice, express or implied, either voluntarily, upon a sudden heat, or involuntarily, but in the commission of some unlawful act. The inquiry upon this branch of the case is reduced to the question whether there is any evidence in the record showing that, in taking the life of the deceased, the appellant did so purposely and maliciously. The facts, greatly condensed, are as follows: The appellant, Bridgewater, was a married man, and was jealous of his wife. His distrust had involved him in one or more difficulties before the oc Ap currence of the homicide for which he was convicted. Appellant and his wife kept house, but she was employed as a domestic servant at a residence some distance from her own home, and usually remained all the day, and sometimes all night, at the place where she was so employed. On leaving appellant's house on Sunday morning, August 15, 1897, appellant asked his wife to come back that afternoon, but she would not promise to do so. Without the knowledge of appellant, in company with two other women and two men, of whom the deceased was one, she went to a picnic at a place called "Crow's Nest," north of Indianapolis, near Broad Ripple; returning from thence at about 8 o'clock in the evening, in a surrey, with the other members of the party. The deceased, Ollister Wharton, accompanied Mrs. Bridgewater from the surrey across a vacant lot to the rear of the residence where she was employed. She sat down on a bench, and Wharton stood in front of her, talking to her, for perhaps five minutes. pellant approached them, but his wife failed to recognize him, the night being a very dark one. On the near approach of appellant, Wharton, who was a total stranger to appellant, stepped back. Instantly the men clinched. A short struggle took place between them. A moment later, Wharton rushed back to the persons he had just left, saying, "I am cut." He fell on the grass, and died almost immediately. Eight wounds were found on his body, one of them penetrating his heart, and three of them being in his back. Wharton's watch, with a broken chain attached, was afterwards found on the ground at the place where the struggle occurred. Appellant's hat was discovered on the porch. The appellant fled to Chicago, where he was afterwards recognized and arrested. The knife with which the homicide was committed was a large pocketknife. Statements made by appellant to the officers who arrested him were proved on the trial, and in them he asserted that as he went onto the porch, where his wife was sitting, he was struck behind the ear; that the blow dazed him; that he clinched with his assailant, got out his knife, and cut him once or twice; that he broke loose, and that both of them got off the porch; that they struggled with each other again, until they came to a small pile of sand; that appellant fell on the sand, with Wharton upon him; and that he rolled Wharton over, and cut him again. There was no evidence that appellant had ever seen or heard of Wharton before the encounter on the porch. Not a word was spoken during the struggle, either by Wharton or appellant. Appellant testified on his own behalf substantially to the circumstances of the homicide, as he had related them to the arresting officers. Wharton was unarmed, nothing but an unopened pocketknife being found upon his person. The wife of the appellant was generally known as "Lizzie Johnson," and there was no evidence that the deceased knew that she was a married woman. Rejecting, as the jury did, as wholly incredible, the testimony of the appellant that the deceased, without provocation and without a word, struck the appellant as he stepped upon the porch, the evidence fully justified the jury in finding that the killing was done purposely and maliciously. The time and circumstances of the attack; its suddenness and ferocity; the weapon used; the number and character of the wounds, and their location,-unmistakably indicated a relentless purpose to kill, coupled with intense malice, which, in its technical sense, is an evil disposition to do injury for the gratification of jealousy, anger, hatred, or other like passion. Malice cannot be inferred from the use of a deadly weapon alone; for such a weapon may, under proper circumstances, be employed in necessary selfdefense. But where a homicide is perpetrated by the intentional use of a deadly weapon, in such manner as is likely to, and does, produce death, the law presumes such homicide was committed purposely and maliciously, unless it was done in self-defense, or upon a sudden heat occasioned by such provocation as is adequate in law to reduce the killing to the grade of manslaughter. McDermott v. State, 89 Ind. 187; Com. v. Webster, 5 Cush. 295; Murphy v. State, 31 Ind. 511; Clem v. State, Id. 480; Boyle v. State, 105 Ind. 469, 5 N. E. 203; Howell v. Com., 26 Grat. 995; Mitchell v. Com., 33 Grat. 872; Kunkle v. State, 32 Ind. 220; Newport v. State, 140 Ind. 299, 39 N. E. 926; Com. v. Drum, 58 Pa. St. 9; People v. Schryver, 42 N. Y. 1. Without undertaking to weigh the evidence, and disregarding all contradictions and explanations, we think it fully supports the verdict, and it is difficult to see how the jury could have reached any other conclusion more favorable to the appellant. It is objected, in the next place, that the court erred in giving to the jury instruction numbered 29, which was in these words: "(29) And if you, and each of you, are satisfied, beyond a reasonable doubt, that the defendant did willfully kill the said Ollister Wharton, but the same was done without malice, express or implied, and without premeditation, voluntarily, then you may find the defendant guilty of manslaughter." Counsel for appellant say that the use of the word "willfully" was unauthorized and improper; that it means not only voluntarily, but with a bad purpose, or an evil intent, without justifiable excuse,-citing, among other cases, Com. v. Kneeland, 20 Pick. 220, and Felton v. U. S., 96 U. S. 699, 24 L. Ed. 875. Granting that the definition contended for is the correct one, the use of the word "willfully," so far from being injurious to appellant, rendered the instruction more favorable to him than he had any right to ask. It said, in effect: If you are satisfied beyond a reasonable doubt that the defendant, even with an evil intent, and without justifiable excuse, did kill the said Ollister Wharton, but the same was done without malice, express or implied, and with |