have given. Judgment affirmed, the appellants to pay the costs. (99 Md. 69) JUSTIS v. JUSTIS. (Court of Appeals of Maryland. Feb. 17, 1904.) WILLS-ADVANCEMENTS INTENTION OF TES TATOR-EVIDENCE-WITNESS- 1. The question whether a gift was intended as an absolute gift or as an advancement may be ascertained by parol evidence of the donor's declarations at the time, or of the donee's admission afterwards, or by proof of facts from which the intention may be inferred. session of the ring. It was clearly the duty | judgment will be affirmed for the reasons we 01 Linthicum to surrender the pawn ticket if that in any way interfered with the appellees getting possession of it. The mortgage provided that on default of payment of any installment, "or if the mortgagor shall sell or assign said chattels or any part thereof, then the whole debt shall, at the option of the mortgagees, without notice of said option to any one, and without demand, become at once due and payable, and the said mortgagees shall thereupon have the right, without any demand whatsoever, to take possession of said property," etc. After providing for a sale of the property, paying all costs and charges, etc., it concludes: "No stipulation herein contained shall be deemed rescinded as against said mortgagee, unless such rescission is in writing and signed by said mortgagee." Linthicum was expressly prohibited from selling or assigning the ring, and therefore the appellant had no right to accept it from him, and if he chose to do so in opposition to the terms of the mortgage, of which we have said he had constructive notice, he must take the consequences, at least in a suit at law. It is true that Linthicum had an equity of redemption, and the appellant as his assignee could likewise have redeemed the ring, but he could not have done that without paying the appellees the balance due them on the mortgage. Although this is a suit at law, the appellees have only demanded of the appellant what he would have been required to do in equity, and therefore he is not injured by the verdict. 3. In view of what we have already said, it would be useless to discuss the third and fifth exceptions, and it is only necessary to say that the court was right in those rulings. The appellant has no reason to complain of the prayers granted for the plaintiffs, which limited the right of recovery to the principal still due the mortgagees, and then only provided the jury found that that amount did not exceed the value of the ring. The prayer offered by the defendant himself contained everything that was necessary to enable the plaintiffs to recover what they did. It instructed the jury that if they found that the plaintiffs sold the ring to Linthicum for $120, and to secure the purchase money Linthicum executed and delivered the mortgage, and that he had paid $68 on account of the purchase money, "then the plaintiffs are entitled to recover, and in estimating the damage or amount to which the said plain- | tiffs shall be entitled they shall deduct from the amount of said one hundred and twenty dollars ($120) the amount paid by the said William B. Linthicum on account thereof." That is precisely what the jury did, and did not even allow interest. It is unnecessary to discuss the other questions suggested by counsel, although they have shown great industry and ability in presenting them. Under our view of the case they need not be determined, and the 2. Where testator was survived by only a son and the daughter of a deceased son, and his will revoked earlier wills, in which different provisions had been made for the children, and in which the subject of advancements was considered, gifts previously made by testator to his children should not be taken as advancements. 3. Where the son of a decedent claimed a sum as a portion of undrawn profits of a firm consisting of himself and testator, evidence that decedent had stated to his son at the close of the partnership that they "were square" showed that the son's contention was untenable. 4. Under Laws 1902, p. 718, c. 495, which repealed and re-enacted Code Pub. Gen. Laws, art. 35, § 2, relative to the competency of witnesses in cases involving transactions with deceased persons, but omitted the disqualification of the original party to a contract or cause of action when the other party is dead, an executor in a suit for the construction of a will is a competent witness as to a transaction between himself and deceased. 5. In a suit for the construction of a will, wherein plaintiff claimed that defendant should be charged as an advancement with a house conveyed by testator to defendant's wife for life, there was no error in dismissing the bill as to such house, it appearing that the wife had but a life interest, and that she was dead. Cross-Appeals from Circuit Court No. 2 of Baltimore City; John J. Dobler, Judge. Suit by Anna Arnold Justis against John C. C. Justis. From the decree, both parties appeal. Reversed. Argued before McSHERRY, C. J., and BRISCOE, BOYD, PAGE, PEARCE, SCHMUCKER, and JONES, JJ. J. Wilson Leakin, for plaintiff. Joseph C. France, for defendant. BRISCOE, J. This controversy involves a construction of the last will and testament of William S. Justis, late of Baltimore City, deceased, who died some time in the year 1898. The parties to the suit are uncle and niece, and the only descendants of the testator. The will is dated September 26, 1891, and, after directing his debts and funeral expenses to be paid, the testator provides as follows: "All the rest and residue of my estate, real, personal and mixed, whether now owned or hereafter acquired by me I give devise, and bequeath unto such persons and in such shares as the same would go under the Maryland laws of descent and distribu tion in force at my death, in case I had died intestate. I hereby nominate and appoint my son, John C. C. Justis, executor of this my will and again revoke expressly all for mer wills by me heretofore made." The bill of complaint was filed on the 30th day of December, 1899, in the circuit court No. 2 of Baltimore, by Anna Arnold Justis, a granddaughter, against John C. C. Justis, a son of the testator, and the executor named in the will. It charges, in effect, that the testator made, in his lifetime, certain advancements to his son, and that under a proper construction of the will his share should be charged with those advancements, amounting to the sum of $31,500. The advances to the son are stated to be, first, the sum of $24,000, turned over to the son on the 1st day of May, 1878, by way of one-half interest in the business of the firm of Justis & Armiger, Baltimore; second, a conveyance on the 3d of March, 1880, of a house No. 1425 Park avenue, valued at $7,500, to Louisa M. Justis, wife of Christopher, for life, with remainder to their children; and, third, one undivided half of certain leasehold property, No. 822 W. Baltimore street, which the son retains as his own property. The prayer of the bill is for a partition of the testator's real estate, a distribution of the personalty, an accounting by the defendant, and the share of the defendant shall be charged with the advancements, as stated in the bill. The defendant's answer expressly denies that he received the money and property as charged in the bill by way of advancement, and contends that the law of advancement has no application to the case. The case was heard upon bill, answer, and proof, and from a decree of the court below allowing certain advances the plaintiff and defendant have each appealed. In the view we take of the case it will not be necessary for us to review all of the questions raised on the appeals, because we are of the opinion, under the facts and circumstances of the case, and according to the intention of the testator, the property and money bestowed upon his children in his lifetime are to be treated as gifts without a view to a portion or settlement, and not an advancement. All the cases in this state hold "that whether a gift takes the character and legal properties of an advancement or those of an absolute gift without a view to a portion or settlement depends on the intention of the donor, and that intention may be ascertained by parol evidence of the donor's declarations at the time of executing the conveyance or making the gift, or of the donee's admission afterwards, or by proof of facts and circumstances from which the intention may be inferred. Parks v. Parks, 19 Md. 323; Graves v. Spedden, 46 Md. 527; Cecil v. Cecil, 20 Md. 153. The manifest intention of the testator in making the will here in dispute was to preclude the question of advancements, and to provide that the residue of his estate, real and personal, should be equally divided be tween his surviving descendants. By this will he expressly revoked the earlier wills he had made, in which a different provision had been made for his children, and in which the subject of advancements was considered by him. At the time of making the last will many changes had taken place in his family, and he was survived by only a son and the daughter of a deceased son. His wife died in 1891; a son, Aquilla, died in May, 1898, Wm. S. in 1873, Charles in 1868, and Rufus in 1890. He had been liberal and generous to his children, and according to the testimony in the case had given large sums to his son Christopher, and also to his son William, the father of the appellant, Anna. In Dilley v. Love, 61 Md. 603, it is distinctly held that in all cases in which the question arises whether payments made by a father, who afterwards dies intestate, to or for the benefit of his children, are to be treated as advances, and in that respect to be set off in making an ultimate division of his property, regard must be had to the surrounding circumstances. The very principle upon which advances are to be set off by way of hotchpot is that of endeavoring as nearly as possible to do that which is equal justice among all the children of the dead man. Looking, then, to the facts and circumstances, as disclosed by the record in this case, we are of the opinion that the gifts made by Mr. Justis to his children were not intended as advancements to be charged against them in the distribution of his personal estate or in the partition of his real estate, and that neither the provisions of Code Pub. Gen. Laws, art. 93, § 125 (the statute of distribution), nor article 46, 31 (the act of direct descent), relating to the subject of advancements, have any application to the case. Nor do we concur in the conclusion reached by the court below that the claim set up by the appellee, Christopher, for one-half of the profits of the business of the firm of Wm. S. Justis & Son for the years 1870 to April 30, 1878, should be allowed as undrawn profits of the firm. The evidence does not support such a contention. The declaration of the father to the claimant, on the 30th of April, 1878, "Now, Christopher, we are square," is conclusive upon the question of indebtedness between them. This declaration was made on the date of the formation of the partnership of Justis and Armiger, and at the time when the gift of $24,000 was made by the father to the son. It is objected, however, that the defendant, being an original party to the cause of action, was an incompetent witness, and this objection was sustained by the court below. The testimony was taken since Act 1902, p. 718, c. 495, which repealed and re-enacted section 2 of article 35 of the Code of Public General Laws. It appears that the act omitted the disqualification of an original party to a contract or cause of action when the other party is dead. Under this act the defendant was a competent witness. Duck worth v. Duckworth, 97 Md. 56 Atl. 490. There was no error in the dismissing of the bill as to the Park avenue house. The property was conveyed to Mrs. Justis, the wife of the defendant. She had but a life interest in the property, and is now dead. For the reasons we have given, the decree of the circuit court of Baltimore City will be reversed, and the cause remanded for further proceedings, to the end that the property of the testator may be distributed and divided equally between the appellant and appellee according to the intention of the testator as expressed in his will. The costs to be paid out of the estate. Decree reversed, and cause remanded for further proceedings; costs to be paid out of the estate. (98 Md. 665) JOYNES et al. v. HAMILTON et al. (Court of Appeals of Maryland. Feb. 17, 1904.) WILLS - CONSTRUCTION OF DEVISE - TESTATOR'S SALE OF PROPERTY-DISPOSAL OF PROCEEDS-ADEMPTION OF LEGACY. 1. A testator devised to his grandchildren a certain lot in fee, on which stood a church building rented to a religious society. Afterwards, in consideration of $500, he leased the land to the church for 99 years, subject to a ground rent. Subsequently he executed a codicil providing that the grandchildren were to have the ground rent on the lot. Held, that the grandchildren were not entitled to the $500. 2. After the execution of the codicil the church redeemed the ground rent, as it was empowered to do under the lease, for $2,000, and received a deed from the testator. On the same day testator's bankbook showed a deposit of that sum, and after his death there was found the check for $2,000, payable to the order of his grandchildren, and a letter reciting that in case of his death the inclosed check was to be paid to his grandchildren in lieu of the ground rent which had been redeemed. Held, that the $2,000 passed to the grandchildren under the will and codicil. 3. The fact that the church redeemed the ground rent in the testator's lifetime did not work an ademption of the devise. Appeal from Circuit Court No. 2 of Baltimore City; John J. Dobler, Judge. Case stated for the construction of a will between Evelyn H. Joynes and another and Columbus J. Hamilton and another, executors of the last will and testament of William Hamilton, deceased, and others. From a decree in favor of the executors and others, Evelyn H. Joynes and another appeal. Reversed. Argued before McSHERRY, C. J., and FOWLER, BRISCOE, PAGE, PEARCE, SCHMUCKER, and JONES, JJ. W. Burns Trundle, for appellants. Edwin J. Griffin and S. John Lion, for appellees. BRISCOE, J. This is a special case stated under the forty-seventh general equity rule, for the construction of the last will and testament, and codicil thereto, of William Hamilton, late of Baltimore City, deceased. The facts to enable the court to decide the ques tions submitted and raised on the record, briefly stated, are these: Mr. Hamilton departed this life on the 15th day of November, 1902, owning real and personal estate of the aggregate value of $50,000, and leaving a last will and testament dated the 2d day of July, 1890. A codicil was made to the will, and bears date the 16th day of March, 1897. The will and the codicil were duly admitted to probate in the orphans' court of Baltimore City, and the appellees qualified as the executors named therein. By the eighth clause of the will, and the one here in controversy, he provides as follows: "I give to my two grandchildren, the children of my deceased daughter, Mary Julia, wife of Tulley A. Joynes Jr. all that lot in fee fronting about fifty nine feet on Franklin Street near Arlington Avenue and adjoining the lot I gave to my daughter Mary Julia and that my executors shall sell or lease the same and deposit the net proIceeds in bank or invest the same for the benefit of my said grandchildren Evelyn and Julia Joynes and also the sum of one thousand dollars the interest to be paid from the time of my death until they or either of them are eighteen years old and in case of the death of either the survivor to have all and in case of the death of both before they are of the age of eighteen the said sum or sums of money is to be equally divided among my children living at the time of said death if such should occur." The testator left surviving him seven children and three grandchildren. The appellants are the children of a deceased daughter, and are the granddaughters named in the eighth clause of the will, and are now above the age of 18 years. At the date of the execution of the will, the lot which the testator owned on Franklin street, and which he devised by the eighth clause of the will to the appellants, was improved by a small chapel, and this was rented to the Concordia Evangelical Lutheran Congregation of Baltimore at a yearly rental of $80. On the 28th of July, 1896, and six years after the date of the will, the testator, in consideration of $500 paid him, leased this lot to the church for 99 years, subject to a ground rent of $120, and gave the church the right, in the lease, to redeem the rent and purchase the lot at any time for the sum of $2,000. Subsequently, on the 16th day of March, 1897, Mr. Hamilton executed a codicil to his will, which, among other things, provides as follows: "I release my son, Cornelius J. Hamilton in paying to my two granddaughters, Evelyn and Julia Joynes, the children of my deceased daughter Mary Julia, the sum of one thousand dollars and give to them the ground rent of eighty two 50/100 dollars on the lot fronting sixteen feet six inches on the West side of York Road corner of Barrackman's Lane by one hundred and twenty feet deep, they are to have the ground rent created on the lot on Franklin Street adjoining the lot given or deeded to 26 57 ATLANTIC REPORTER. my daughter Mary Julia the rent amounts Baltimore 190-. Check: "No. Fidelity and Deposit Company of Maryland: Pay to the order of Evelyn and Julia Joynes dollars ($2,000). [Signed] two thousand Wm. Hamilton." Letter: "Baltimore, October, 1901. The enclosed check for two thousand dollars, in case of my death is to be paid to Evelyn and Julia Joynes, my grandchildren, the children of Tulley A. Joynes, in lieu for the ground rent of one hundred and twenty dollars on lot on Franklin Street in my will, which has been redeemed by the Church. [Signed] Wm. Hamilton." Upon the case as thus stated the circuit court of Baltimore City held that, under a proper construction of the will and codicil of the testator, the appellants were not entitled to any interest in or to any part of the proceeds of sale of the Franklin street lot, mentioned in the eighth clause of the will, and an appeal is taken from this decree. It will be thus seen that there are two questions presented for our determination, and they relate, first, to the disposition of the $500, a part of the proceeds of the Franklin street lot, received by the testator, at the date of the lease to the church of the lot in dispute; and, secondly, as to the effect of the devise of the ground rent created on the lot on Franklin street, and specially devised by the testator, in the codicil to his will, to the appellants, and subsequently redeemed by the church. As to the first question but little need be said, because we think it is quite clear that the testator, in the codicil, dated the 16th day of March, 1897, revoked the previous devise of the lot, as contained in the eighth clause of the will, and gave in lieu thereof the ground rent created thereon. The language of the codicil is, "They are to have the ground rent created on the lot on Franklin street adjoining the lot given or deeded to my daughter, Mary Julia, the rent amounts to one hundred and twenty dollars, during their natural life, and in case neither of them should leave children then their portion, to go to my children, living at their death, in equal shares." The testator exe- The remaining question in the case in- 19 Atl. 761), yet they clearly trace out and identify the fund in bank at the time of the death of the testator as the proceeds of the redeemable ground rent, and also show that it was the manifest intention of the testator that the converted proceeds should pass under the codicil to his will to the appellants. This being so, there was no ademption of the legacy, and the grandchildren take the fund of $2,000, subject to the limitations expressed in the codicil. Littig v. Hance, 81 Md. 425, 32 Atl. 343; Frick v. Frick, 82 Md. 218, 33 Atl. 462; Nooe v. Vannoy, 59 N. C. 185; Wright v. Minshall, 72 Ill. 584; Woods v. Moore, 4 Sandf. 579. The intention of the testator, obviously, was to provide for the appellants, the grandchildren named in the codicil; and to sustain the appellees' contention, and the conclusion reached by the court below in this case, would defeat not only one of the objects of his bounty, but would violate this intention, as expressed in the will and codicil. For the reasons we have given, the decree of the court below will be reversed, and the cause remanded, to the end that a decree may be passed in accordance with the views herein expressed. Decree reversed and cause remanded; the costs to be paid by the executors out of the estate. (98 Md. 355) HAWKINS v. STATE. (Court of Appeals of Maryland. Jan. 12, 1904.) DYING DECLARATIONS-HOPE OF RECOVERYCERTAINTY OF IMPENDING DEATH. 1. A girl on whom an abortion had been performed called to her mother to "get help," saying, "If you don't send for the doctor, I will die." During several hours thereafter she repeatedly said she knew she was dying, and the mother testified that she "could see death in her eyes." Held, that a statement as to who performed the abortion, made after the repeated assertions that she knew she would die, was admissible as a dying declaration. 2. On cross-examination the mother was asked if she did not at a former trial testify that the declaration was made before the statements of impending death, and said that at the former trial she testified that at the time the daughter said "Send for a doctor" she asked her what was the matter, and, after being told of the abortion, was also told who performed it; but she adhered to her statement that before the declaration which had been admitted was made the daughter had said she knew she was dying. Held, that the witness' testimony was not so weakened by the cross-examination as to require the striking out of the declaration. 3. Where a patient in severe pain said to a physician, "Oh, doctor, I am dying; I want you to relieve me;" and subsequently continually made practically the same statement, always asking for relief, statements made thereafter were admissible as dying declarations, the request for relief referring to relief from pain, and not showing hope of recovery. Appeal from Criminal Court of Baltimore City; Henry Stockbridge, Judge. William B. Hawkins was convicted of manslaughter, and appeals. Affirmed. 1. See Homicide, vol. 26, Cent. Dig. § 433. Argued before McSHERRY, C. J., and FOWLER, BRISCOE, BOYD, SCHMUCKER, PAGE, PEARCE, and JONES, JJ. Roland B. Harvey, for appellant. Atty. Gen. Rayner, for the State. PEARCE, J. The appellant in this case, William B. Hawkins, was convicted of manslaughter by an abortion performed on Caroline M. Briele. During the trial three exceptions were taken, the first being to the admission of an alleged dying declaration proved by the mother of the deceased, the second being to the subsequent refusal to strike out this proof by Mrs. Briele, and the third to the admission of a similar declaration proved by Dr. Reiche. These all present the single question of whether they were made under a sense of impending death, and will all be considered together. Mrs. Briele testified: That her daughter was looking badly on Saturday and Sunday, and that on Monday she wished her to stay at home, but she went as usual to her work as a dressmaker, but said she would return at noon if she did not feel better, and that she did return at noon. That she sent for Dr. Reiche to see her daughter, and that he came and left some medicine for her, but that she did not complain of suffering, and he made no examination. That the next morning her daughter called to one of the children, "Tell mamma to come up quick." That she found her lying across the bed, and she said: "Oh, mamma, do get me help. If you don't send for the doctor, I will die." That this was between 11 and 12 o'clock, and the doctor got there about 1 o'clock. That she kept repeating: "Oh, mamma, I am dying. I have had an abortion;" and that she could see death in her daughter's eyes. That Dr. Reiche sent for Dr. Prentiss to make an examination, and he came that afternoon some time, and made an examination. That while waiting for Dr. Prentiss to come she constantly said she knew she was dying; and that she died about 6 or 7 o'clock Wednesday morning. At this point the state offered her declaration as to the cause of her death, made on Tuesday, concurrently with her declaring that she knew she was dying, and, the objection to this being overruled, the first exception was taken. Mrs. Briele then testified that her daughter said that she went to Mrs. Bell Haslem's to have an abortion operation performed, but she would not do it, and sent for Dr. Hawkins, and he performed the operation. On cross-examination Mrs. Briele said that when she went upstairs Tuesday morning her daughter said: "Oh, mamma, get the doctor. I am dying. I know I am dying.' I asked, 'What is the matter?' and she said she had abortion performed, and I said, ‘Oh my! by whom?' and then she told me." Here counsel for the defense moved to strike out so much of Mrs. Briele's testimony as refers to her daughter's declaration that Dr. Hawkins performed the operation, and, his |