Justis v. Justis

Briscoe, J., delivered the opinion of the Court. This controversy involves a construction of the last will and téstament 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 es- ' tate, 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, executqr 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 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 bfirst, 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, 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 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