This controversy involves a construction of the last will and testament of William S. Justis, late of Baltimore City, deceased, who died sometime 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 26th, 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 Distribution 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 former 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 *Page 79 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 thirty-one thousand and five hundred dollars. The advances to the son are stated to be, first, the sum of twenty-four thousand dollars, turned over to the son on the first 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 3rd 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, andthird, 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 *Page 80 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 between 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 died 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 the Code, Art. 93, § 125 (the Statute of Distribution), or Art. 46, § 31 (the Act to Direct *Page 81 Descents), 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 30th, 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 the Act of 1902, ch. 495, which repealed and re-enacted sec. 2 of Art. 35 of the Code. 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. Duckworth v.Duckworth, 98 Md. 92.
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.
(Decided February 17th, 1904.) *Page 82