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which being refused he immediately proceed- | portant facts surrounding this unfortunate ed to break down the doors of the house, all affair. the while threatening to kill the accused. [2] The evidence and claims of the parties After he had broken down the storm porch were such as to require a charge upon the door, the accused warned him that she had theory that Mrs. Perkins' motive in shooting two revolvers, and that if he broke through the deceased was to save her own life or to the double house doors and attempted to protect herself from any bodily harm. An come in she would shoot him. Notwithstand- assault on one's house can be regarded as an ing this warning Coatchaly continued his vio-assault on the person, within the meaning lent assault upon the double doors, and, as of the law with reference to self-defense, the right-hand door was giving way, he said to the accused, with an oath, "Now I've got you, and I'll cut your guts out." That the accused at the time of his breaking into her house believed that the deceased intended to carry out his threats to kill her, and believed that her life was in imminent danger from Coatchaly, who was a strong, robust man, 28 or 29 years of age, weighing about 180 pounds. After the accused had warned the deceased that she would shoot if he broke in, and after he had broken down the right half of the house doors, and was attempting to enter, the accused attempted to fire a revolver at him, but it would not work. She then thought of the shotgun, which was kept near by, and fired at Coatchaly. The accused shot the deceased as he was breaking into the house to prevent his entering and taking her life. While living with the accused he had beaten her and threatened to take her life. At the time when the deceased attempted to break into the house the accused was alone in the house, except that she had in her charge two infants, one her son's child, 11 months old, the other her daughter's child, between 3 and 4 months old.

Many of the claims of the defendant as to the facts surrounding the shooting were controverted by the state. The state claimed that it might fairly be inferred from the evidence that when Coatchaly was breaking in the doors and attempting to make a violent entry into the house, the accused had no rea、 son to believe that he intended to do or would do her, or either of the children, any harm or violence, or that he intended to do or would do anything but to gain access to his child. The state claimed to have proven that Coatchaly's only motive in breaking and entering was to obtain access to his child. It was conceded by the state that Coatchaly was a trespasser in so breaking and entering. Yet it is claimed that no necessity existed for killing him for the simple purpose of preventing him from breaking into the house to see his child. It was said in substance that, admitting that all the conditions existed substantially as the defendant contends, she was guilty of manslaughter, unless it appeared that she had reasonable grounds to believe that Coatchaly intended to kill or seriously injure her, or that she was in imminent danger of death or of great bodily harm.

Although the evidence was conflicting, the jury had the right to believe the version of the defendant and her witnesses as to the im

where the purpose of the assault is an injury to the person of the occupant or members of his family, to accomplish which the assailant attacks the house in order to reach the inmate. In this connection it is said and settled that in such case the inmate need not flee from his house in order to escape injury by the assailant, but he may meet him at the threshold and prevent him from breaking in by any means rendered necessary by exigency, and upon the same ground and reason that one may defend himself from peril of life or great bodily harm by means fatal to the assailant, if rendered necessary by the exigency of the assault. State v. Patterson, 45 Vt. 308, 12 Am. Rep. 200. This proposition was cited with approval by this court in the case of State v. Scheele, 57 Conn. 328, 18 Atl. 256, 14 Am. St. Rep. 106.

Upon this branch of the case the trial court, among other things, stated to the jury that:

"A man may thus do what seems reasonably necessary under the circumstances in which an assault is made upon him to preserve himself from personal danger, with this limitation: That he must not take the life of a fellow being who is assaulting him when such fellow being is doing no more than committing an ordinary assault and battery upon him, but only in case of extreme necessity as the only practicable method of saving his own life or protecting himself from great bodily harm, and even then he must not have brought upon himself the necessity which he set up in his defense by beginning or continuing the fight. A man who is attacked by another under circumstances which denote an intention to take his life or to do him great bodily harm may lawfully kill the assailant, provided he uses such means as he reasonably can to avoid the necessity. It is thorize a reasonable belief that the assault is only when the circumstances are such as to aumade by the first aggressor with design to take life or inflict extreme bodily harm that a man would be justified in attempting to kill the assailant or using violence upon him likely to kill him. What it is reasonably necessary to do in making a defense against the first aggressor depends upon all the circumstances of the particular case, the nature of the attack, and the degree of danger in which an accused person was at the time, or reasonably believed he was in. If the circumstances at the time reasonably appear to him to indicate great danger, and he acts upon such belief, he will not be deprived of the benefit of the law of self-defense because in fact the danger was less than he reasonably believed it to be. It will, of course, be a question for the jury whether the circumstances were such as could reasonably give him the belief of the existence of such great danger." These instructions were well adapted to this issue.

[3] The jury were warranted from the evidence before them in finding the accused not

guilty upon this theory and claim. But the state con.ends that the court erred in stating to the jury that:

"A man is not obliged to retreat if assaulted in his dwelling, but may use such means as are absolutely necessary to prevent the assailant's forcible entry, even to the taking of life. If a man is making an unlawful entry by force into the house of another, the owner may, for the sole purpose of preventing the execution of such unlawful act, make resistance sufficient in degree and in time to prevent it. He is under no obligation to admit the unlawful intruder, or to flee from the house and permit him to effect an unlawful entrance. If the resistance is neither greater in degree nor earlier in time than is necessary, and it results in the death of the assailant, it is justifiable homicide; and the slayer is to be judged as the circumstances really appeared to him at the moment. If the resistance is unnecessarily great in degree, or early in time, and therefore unreasonable, and therefore unlawful, and results in the death of the assailant, it is manslaughter. But even if the circumstances are such as would justify the householder in taking the life of the assailant who is violently and unlawfully breaking into the house for the purpose of preventing such breaking in, still, if the houseowner take the opportunity of the breaking in to kill the intruder, not for the sake of preventing the unlawful intrusion, but to gratify his hatred, malice, or ill will against the intruder, then the killing will be at least manslaughter, if not murder. You should apply these principles to the facts in this case as you find them from the evidence. First, was the accused, as the defense claims, making a reasonable and necessary defense against the deceased in an attempt, either real or apparently real, to take the life or do serious bodily harm to herself or the children who were under her charge and part of her family? Second, was the deceased, as the defense claims, violently and unlawfully breaking into the house of the accused against her will, and was her resistance, as the defense also claims, no greater or earlier than necessary to prevent such breaking in? Third, if the defense made by the accused was no greater or earlier than necessary to prevent such breaking in, was it made in good faith, for the sole purpose of preventing such breaking in, or did the accused merely take advantage of the opportunity afforded by the breaking in to gratify ill will against the deceased by killing him ?"

The state claims that by these instructions the jury were told that:

"No matter what the object of an intruder might be when the doors are shut the householder may kill the intruder to prevent his entry into the house. As it was admitted that the deceased was breaking into the house under the charge, the jury had no alternative."

gratify his hatred, malice, or ill will, when the killing will be at least manslaughter.

While these instructions are not in accord with the law of those jurisdictions where the right to take life in the defense of one's dwelling is limited to occasions where it is reasonably apparent that the intruder is actuated by a felonious purpose, they well state what we regard as the better and sounder rule. er rule. Wharton, Criminal Law (11th Ed.) § 634; Bishop's New Criminal Procedure, § 196.

The court did not err in instructing the jury that:

"Assuming that the deceased had a right to see the child, and had an equal right to its custody with the mother, he had no right to enforce his prerogatives with regard to the child by a violent intrusion into the house of another person. The law was open to him, and it would be very easy for him to have tested the right of possession, either by an attempt to remove his coguardian, if she were an improper person, or to let the court decide who, in regard to the best interests of the child, was the best person to have the custody of it."

The right of self-defense and the right of redress are two different things. You may prevent an injury from being done by all proper means, but, when done, you cannot take redress into your own hands. The right of redress is provided for in no uncertain terms. Our Constitution provides that:

"All courts shall be open, and every person, for an injury done to him in his person, property or reputation, shall have remedy by due course of law, and right and justice administered without sale denial or delay." Constitution of the State of Connecticut, art. 1, § 12.

This declaration asserts the broad doctrine that for every injury to the person or property the redress is to be administered by the "courts" and "in due course of law." There is no error. The other Judges concurred.

Appeal of KING.

(88 Conn. 423)

In re GEDNEY'S ESTATE. (Supreme Court of Errors of Connecticut. July 13, 1914.)

1. ABSENTEES (§ 5*)-ADMINISTRATION OF ESTATE-PROBATE COURT-Power.

Laws conferring on the probate court power to administer the estates of persons unheard of for seven years are valid, if provision is made for giving proper notice of the proceedings and adequate safeguards are provided. [Ed. Note.-For other cases, see Absentees, Cent. Dig. §§ 3-11; Dec. Dig, § 5.*1 2. ABSENTEES (§ 5*)-ADMINISTRATION OF ES

TATE-NOTICE-SUFFICIENCY.

This is not a fair interpretation of these remarks. In effect the jury was instructed that if one is attacked unlawfully in his own dwelling house by one who is attempting to make a forcible and unlawful entry therein, he is not obliged to retreat, but he may use such means as are absolutely necessary to prevent the assailant's forcible entry, even to taking life. It is justifiable homicide if it appears that the resistance is neither greater in degree nor earlier in time than is nec-be given, notice by one publication in a newsessary, and it results in the death of the assailant, unless the householder under such circumstances should take the opportunity of the unlawful entry to kill the intruder to

Under Gen. St. 1902, § 319, giving to courts of probate jurisdiction to administer estates of nonresidents who are presumptively dead, and providing that a sufficient notice shall

paper is sufficient, where the absentee had been away and not heard from for over 27 years, and his age at the time of leaving was not shown.

[Ed. Note.-For other cases, see Absentees, Cent. Dig. §§ 3-11; Dec. Dig. § 5.*]

*For other cases see same topic and section NUMBER in Dec. Dig. & Am. Dig. Key-No. Series & Rep'r Indexes

3. ABSENTEES (§ 5*)-ADMINISTRATION OF EsTATE-PERSONS ENTITLED TO APPEAL.

An administrator not personally interested in the estate of an absentee, whose property was being distributed under administration had on the presumption of his death, cannot attack a decree of distribution on the theory that the notice was insufficient; for, if the notice was insufficient, the administrator's appointment was invalid, and he was without standing in court on any theory.

[Ed. Note. For other cases, see Absentees, Cent. Dig. §§ 3-11; Dec. Dig. § 5.*]

Appeal from Superior Court, Fairfield County; Joseph P. Tuttle, Judge.

In the matter of the distribution of the estate of William E. Gedney. From a decree of distribution, Clitus H. King, administrator, appeals. Affirmed.

Edward P. Nobbs and John P. Gray, both of Bridgeport, for appellant. Paul L. Miller, of Bridgeport, for appellees.

THAYER, J. The appellant appeals in his capacity as administrator of the estate of William E. Gedney, who, as the agreed statement of facts shows, left his home in Trumbull about 27 years ago for parts unknown, and has not been heard of since. At the time of his departure he was unmarried, and' was then the owner of an undivided interest in certain land in Trumbull and of a deposit in a savings bank. On June 27, 1913, his two brothers and the widow and children of a deceased brother made application for the appointment of an administrator upon his estate, representing to the court in their petition the facts as to his absence unheard of for more than 7 years. The probate court, after notice by publication as ordered by it one time in a Bridgeport newspaper, heard the application on July 1, 1913, the day appointed for the hearing in the notice, granted the petition, and appointed the appellant administrator of Gedney's estate. He qualified by giving bonds, and proceeded with the settlement of the estate, procuring as part of the administration an order to sell the real estate, and on January 30, 1914, after notice and hearing, the probate court approved his administration account. On the same day it ascertained the heirs at law and distributees of said Gedney, and made the order which is now appealed from, which, in substance, ordered and directed the appellant as administrator to pay and deliver to each distributee his share of the estate upon his giving bond with surety conditioned for the return of the amount thereof, with interest thereon, to the presumed decedent, if he reappear, and, upon failure of either distributee to give such bond, to hold such distributee's share of the property for 5 years, and until further order of the court.

No exception is taken in the reasons of appeal to the form or substance of this order, the only reasons of appeal being: (1) That the court of probate had no jurisdiction over Gedney's estate, because the statute which

purports to give to probate courts jurisdiction over absentee's estates does not provide

for adequate notice to the absentee, and therefore is unconstitutional; and (2) that, if the statute provides for a sufficient notice, such notice was not, in fact, given.

[1] That a court of probate, under its statutory power to grant administration on the estates of deceased persons, has no jurisdiction to grant administration binding upon him, on the estate of an absentee unheard of for seven years, and so at common law presumptively dead, is well established. Scott v. McNeal, 154 U. S. 34, 43, 14 Sup. Ct. 1108, 38 L. Ed. 896, and cases cited. It is equally well settled that the state may give to these courts the power to regulate and administer the estates of absentees, so presumptively dead, if provision is made for giving proper notice of the proceeding and adequate safeguards are provided to protect the absentee's interest in case of his reappearance. Cunnius V. Reading School District, 198 U. S. 458, 471, 477, 25 Sup. Ct. 721, 49 L. Ed. 1125, 3 Ann. Cas. 1121, and cases cited.

[2] General Statutes, § 319, gives to courts of probate this jurisdiction, requires notice of the proceeding to be given, and safeguards the property of the absentee against his return. The notice to be given is left to the discretion of the court, except that it requires that proper notice shall be given. Different cases might call for different notices in order that the latter should be proper notice. If an absentee when last heard from had been living for some years in a designated locality, and could, if living, probably be reached by a notice personally directed to him there, such notice or a public notice published in that locality might be required to satisfy the call for a proper notice. When the absentee has gone to parts unknown and been absent for a great many years under circumstances which make the presumption of death conclusive, a different notice might satisfy the call of the statute for a proper notice. In the present case the notice given was very short, and the finding gives no facts, except that the absence had been long-27 years |—with no notice of his whereabouts and an apparent abandonment of his property in this state. It is not claimed that he is now alive. What his age was when he absented himself does not appear. If he was then above 70 years of age, there is little probability that any notice would have been better than the one given. The presumption of death in that case would be so conclusive that any notice would be a practical compliance with the statute. We cannot say, therefore, from the facts before us that the notice which was given was not a proper notice.

[3] But we have no occasion to inquire whether it was or not; for we have before us no one who in this proceeding is entitled to question it. If, as the appellant claims, the notice was not a proper one, and the order

*For other cases see same topic and section NUMBER in Dec. Dig. & Am. Dig. Key-No. Series & Rep'r Indexes

The reservation presents two questions. The testatrix executed a will in Decembe:, 1897, by the third clause of which she gave to her sister Sarah R. Guinn $10,000, and to her sister Jerusha A. Winsolow $5,000. Both of these legatees having died, the testatrix, in January, 1908, executed a codicil reaffirming all the provisions of her will, except as altered by the codicil, and giving to four nieces $5,000 each. Of these nieces one was the

taking jurisdiction of the estate and appointing him administrator was void, then he is not administrator, and has no standing in court. As his appeal is taken solely as he is administrator, he is not as such aggrieved by the order. If the notice was proper, the probate court is rightfully exercising jurisdiction over the estate, and, as no complaint is made by the appellant as to the form or substance of the order, he is not aggrieved thereby. The superior court is advised to erase the surviving issue of the testatrix's deceased case from its docket.

The other Judges concur.

(88 Conn. 404)

LEE v. LEE et al.

(Supreme Court of Errors of Connecticut. July 13, 1914.)

1. WILLS (§ 439*) - CONSTRUCTION-INTENTION OF TESTATOR. No rule for the construction of wills is permitted to defeat the intention of the testator expressed in the will itself.

[Ed. Note.-For other cases, see Wills, Cent. Dig. 88 952, 955, 957; Dec. Dig. § 439.*] 2. WILLS (§ 536*) - CODICIL - REAFFIRMING WILL-LAPSE OF LEGACIES-STATUTE.

Testatrix by will executed in 1897, gave certain amounts of money to each of two sisters, and, after they had both died, executed a codicil reaffirming all the provisions of her will, except as altered by the codicil. Gen. St. 1902, $296, on the death of the legatees, converted their legacies into valid gifts to their issue. Held that, as testatrix is presumed to have known the law, the codicil did not convert the legacies contained in the will into void legacies, but that under the statute they were operative as gifts to the issue of the deceased legatees. [Ed. Note.-For other cases, see Wills, Cent. Dig. 1161; Dec. Dig. § 536.*]

3. WILLS (§ 486*)-CONSTRUCTION-CIRCUMSTANCES SURROUNDING EXECUTION OF WILL.

In the construction of a will leaving pecuniary bequests to each of two sisters of testatrix, and of a codicil reaffirming the will, executed after the deaths of the sisters, and after a statute had converted their legacies into valid gifts to their issue, held, that evidence of the knowledge of testatrix of her sisters' death was admissible as one of the circumstances surrounding the execution of the codicil, but not that she believed that because thereof, the legacies were void.

[Ed. Note.-For other cases, see Wills, Cent. Dig. §§ 1016-1022; Dec. Dig. § 486.*] 4. WILLS ( 627*) - CONSTRUCTION-INTES

TACY.

Under a will directing the executors to divide all the residue into six equal shares, and to pay over one of such shares to each of six separately named children, no joint tenancy or class gift with right of survivorship was created; but the share of a son dying, without issue, before the testatrix was intestate estate. [Ed. Note.-For other cases, see Wills, Cent. Dig. §§ 1452-1459; Dec. Dig. § 627.*]

Case Reserved from Superior Court, Hartford County; Marcus H. Holcomb, Judge.

Action by Charles N. Lee, executor, against Thomas G. Lee and others, to obtain a judicial construction of the will of Louise M. Lee. Case reserved. Will construed, and superior court advised.

sister Sarah, and one the sole surviving issue of the testatrix's deceased sister Jerusha.

The first question presented by the reservation is whether the legacies to the deceased sisters lapsed, or whether their issue are entitled to take the estate so bequeathed, under our statute for the prevention of lapses (section 296, G. S. of 1902).

The second question arises under the sixth clause of the will, directing the executors to divide the residuary estate into six equal shares, and to pay over one of such shares to each of three children, and to hold one share as trustee for the benefit of each of the three others. Frederick H. Lee, a son, died, without issue, before the testatrix, and the question is whether the legacy to him lapsed, and, if so, whether the residuary estate should be divided into five equal shares, and distributed among the surviving children.

Reuben Taylor, of Hartford, for plaintiff. Lewis Sperry, of Hartford, and William A. Morse, of Boston, Mass., for Louisa L. Daggett and others. Lewis Sperry, of Hartford, for Campbell Smidt and others. E. Henry Hyde, of Hartford, for Thomas G. Lee and others.

BEACH, J. (after stating the facts as above). [1] The question whether the legacies to the sisters who died before the testatrix are saved for the benefit of their issue by section 296 of the General Statutes depends primarily on the effect to be given to the execution of the codicil of 1908, as a republication of the will of 1897. The defendants who are residuary legatees rely upon the rule that the execution of a codicil which in terms ratifies and confirms a previous will gives to the original will the same force and effect in law as if it had been rewritten, reexecuted and republished at the date of the codicil. Giddings, Ex'r, v. Giddings, 65 Conn. 149, 160, 32 Atl. 334, 48 Am. St. Rep. 192; Whiting's Appeal, 67 Conn. 379, 388, 35 Atl. 268; Carpenter v. Perkins, 83 Conn. 11, 18, 74 Atl. 1062. Then it is said that, as both of the sisters named in the third clause of the will were dead when the codicil was executed, the bequests contained in the third clause are in legal effect gifts to persons already dead at the date of the execution of the will, and therefore legacies which were void when made. The legal conclusion of the

*For other cases see same topic and section NUMBER in Dec. Dig. & Am. Dig. Key-No. Series & Rep'r Indexes

presented by the reservation depends upon whether the sixth clause of the will creates a gift to a class with a right of survivorship or a gift to each of the six children of the testatrix. The decisive words are as follows:

argument is that our statute for preventing [ The determination of the second question lapses in certain cases is confined to legacies which lapse by reason of the death of the beneficiary after the execution of the will, and that it does not operate to save a bequest which was void when made, because the beneficiary was already dead when the will was executed. In the view we take of the case it is unnecessary to determine whether our statute is so limited or not, because this case must be controlled by the universally accepted principle that no rule for the construction of wills shall be permitted to defeat the intention of the testator expressed in the will itself.

"Sixth. I direct my executors hereinafter named to divide all the rest, residue and remainder of my property into six equal shares or parts and 1. To pay over one of such shares or parts to my son Charles N. Lee. 2. To pay over one other of such shares or parts to my son Frederick H. Lee."

And so each share is to be paid over or held in trust for one separately named child.

[2, 3] The first enacting clause of the codi- It seems too clear for discussion that no cil here in question is as follows:

"First. I hereby reiterate and reaffirm all the provisions of my said last will and testament, except in so far as the same are altered hereby." That is to say, the testatrix reiterates and reaffirms, as of January 20, 1908, the third clause of her will making certain bequests to sisters already dead, obviously intending, so far as her written word is concerned, that such legacies, in common with all other unaltered provisions of her will, should continue in the same legal force and effect as before the codicil was executed.

The statute, which the testatrix is presumed to know, had, at the dates of the sisters' deaths, converted their legacies into valid gifts to the issue of such sisters; and it would be a misapplication of the rule contended for to hold that the testatrix, by the very act of reaffirming these gifts, had inadvertently made them utterly ineffectual in law. Blakeslee v. Pardee, 76 Conn. 263, 267, 56 Atl. 503.

joint tenancy or class gift with right of survivorship can be constructed from such language. The question has been so recently before us that it is only necessary to refer to Allen v. Almy, 87 Conn. 517, 89 Atl. 205, and White v. Smith, 87 Conn. 663, 89 Atl. 272. It follows that the share of Frederick H. Lee, who died, without issue, before the testatrix, is intestate estate.

The superior court is advised, first, That the issue of Sarah R. Guinn and Jerusha A. Winsolow, respectively, take the legacies given to the testatrix's sisters under the third clause of the will; second, that the portion of the rest, residue, and remainder of the estate given to the testatrix's son Frederick H. Lee is intestate estate. The other Judges concurred.

(88 Conn. 353)

STATE v. MCGEE. (Supreme Court of Errors of Connecticut. July 13, 1914.)

The codicil of 1908 did not convert the 1. FOOD (§ 15*)-SALES-REGULATIONS-STATbequests contained in the third clause of the UTORY PROVISIONS-CONSTRUCTION. will into void legacies. They still remained Acts 1911, c. 134, penalizing any person of the same effect, and therefore still remain-selling or offering for sale food in package form, unless the net quantity of the contents be marked operative under the statute as gifts to the ed on the outside of the package, and declaring issue of the original legatees. that the act shall take effect from its passage, [4] In this connection we are asked to de- but no penalty shall be enforced for any viotermine whether extrinsic evidence is admis-lation arising from the sale of food "prepared termine whether extrinsic evidence is admis- and inclosed in package form" prior to 18 sible to prove that the testatrix, when she months after passage of the act, does not have executed the codicil, knew that her sisters any effect as to sales of unbranded packages prewere dead, and also that she then believed pared and inclosed at the time of the taking effect of the act, provided the sale is made within the legacies had lapsed and become void by 18 months thereafter, but a sale of food prereason of their deaths. We answer that evi- pared and inclosed in unmarked packages after dence of her knowledge of the sisters' deaths the passage of the act subjects the seller to the is admissible as one of the circumstances sur- penalties imposed, and a sale after 18 months rounding the execution of the codicil, but ages, whenever inclosed, renders the seller liable. after the passage of the act in unmarked packthat evidence of her belief that the legacies [Ed. Note.-For other cases, see Food, Cent. to her sisters had become void is not admissi- Dig. § 14; Dec. Dig. § 15.*] ble. Its only importance would be as tending to prove that the testatrix, in executing the codicil, did not intend to make cumulative gifts to the issue of her deceased sisters; extrinsic evidence of such intent is inadmissible. Bishop v. Howarth, 59 Conn. 455, 22 Atl. 432; Bryan v. Bigelow, 77 Conn. 604, 614, 60 Atl. 266, 107 Am. St. Rep. 64; Seymour v. Sanford, 86 Conn. 516, 521, 86

Atl. 7.

2. INDICTMENT AND INFORMATION (§ 111*)STATUTORY OFFENSES-REQUISITES.

An information, charging a sale of a can of tomatoes without the net quantity plainly marked on the outside, charges a violation of Acts 1911, c. 134, penalizing any person selling food in package form, unless net quantity of contents be plainly marked, and it need not negaforced for any violation arising from the sale tive the proviso that no penalty shall be enof food prepared and inclosed in package form prior to 18 months after the passage of the act,

*For other cases see same topic and section NUMBER in Dec. Dig. & Am. Dig. Key-No. Series & Rep'r Indexes

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