(113 A.)

his plans for its construction. The high cost reported was understood to be due to the war conditions then existing, and the evident plan was to postpone the erection of the church until normal conditions should be restored.

[1] In the case of a legacy to one towards whom the testator does not stand in loco parentis, the rule is that if the bequest is for a particular purpose, a subsequent gift to the legatee by the testator in his lifetime for the same purpose operates as a satisfaction of the legacy to the amount of the gift. This statement of the rule is subject to the qualification that the gift inter vivos must not be substantially different in kind from the legacy. There was practical agreement in the argument as to the law affecting the question now being considered. The rule we have stated is uniformly recognized and applied where the conditions make it appropriate. Pomeroy's Eq. Jur. (2d. Ed.) § 562; Roper on Legacies (2d Ed.) vol. 1, p. 380; 3 Story's Eq. (14th Ed.) § 1495; 40 Cyc. 1915, 1916; In re Corbett (1903) 2 Ch. 326: Re Pollock, 28 Ch. D. 552; In re Aynsley (1914) 2 Ch. 422; Pankhurst v. Howell, L. R. 6 Ch. App. 136; In re Fletcher, L. R. 38 Ch. 373; Hine v. Hine, 39 Barb. (N. Y.) 507; Taylor v. Tolen, 38 N. J. Eq. 91.

under which some of the lots could be used fing, there was an immediate suspension of only as a site for a church and for the residential apartments of the priests of the church and the professors of the college, and the other lots could be used only for college and school purposes. Between January 14, 1914, and July 1, 1917, Mr. O'Neill had correspondence with a firm of architects, and entered into a contract with them, relating to the plans and specifications for the erection of a church edifice upon the lots he had bought for the college in Guilford. The construction of the church was not begun because building costs and conditions were abnormal, and Mr. O'Neill regarded the amount of his income as being too uncertain. The architect's fee of $5,000 for services rendered was paid by the college out of its funds. On December 6, 1917, Mr. O'Neill gave the college negotiable bonds of the par value of $194,000. It is to this gift that the codicil of January 19, 1918, refers as amounting to about $200,000, and on account of which he reduced to $300,000 the bequest of $500,000, which he had made to the college in the will. In the following December Mr. O'Neill gave the college additional securities having a market value of $81,722.50, and this is the gift to which the first of the questions for decision relates. One of the receipts given by the president of the college for the bonds previously delivered by Mr. O'Neill states that they were given for the erection of a church on the ground at Guilford which he had donated. The third codicil also shows that the bonds then delivered were given for that purpose. It was testified by Mr. O'Neill's secretary, who prepared the receipt for the last gift of bonds to the college, that Mr. O'Neill referred to those securities as being given like those delivered a year earlier. The testimony of the treasurer of the college shows that the gifts were intended and set apart to create a church building fund. That this was the purpose for which all of the donated bonds were designed to be used is the only conclusion which is consistent with the proven facts.

[2] The legal principle involved being clear and undisputed, the only question is whether it applies to the facts of the present case. It was contended on behalf of the college that the evidence does not show definitely that the last gift of bonds was for the same specific purpose for which the bequest in the will was intended. As already indicated, our conclusion is that the purposes of the gift and the legacy were identical.

[3] It was argued also that the rule of partial ademption does not apply because the legacy differs in kind from the gift, one being of money and the other of negotiable bonds. In our opinion this is not such a material difference as to prevent the operation of the general rule. Both were gifts of This conclusion is not affected by the omis- personalty, and both were dedicated to the sion of Mr. O'Neill to make a fourth codicil same purpose of providing a fund for the to his will, expressing his intention that his erection of the church. In Dugan v. Hollins, later gift of securities should, like the earlier 4 Md. Ch. 139, a gift of real estate by a tesone, reduce the amount bequeathed to the tator was held not to work an ademption college by the will for the same object. It of a pecuniary legacy to the donee. The themay have been his expectation to execute an- ory of that decision is not applicable to the other codicil to that end. If such was his very different conditions here presented. purpose, it was defeated by his sudden death | Our conclusion is that the bequest of $300,during the year following the last donation. 000 to the college has been satisfied to the The fact, also relied upon, that the estimated cost of the building was reported to Mr. O'Neill as being higher than the amount originally provided by his will, does not interfere with the adoption of the view we have expressed. When he learned that the cost would be considerably in excess of the $500,

extent of the later gift of bonds of the value of $81,722.50, and that the amount of the legacy has been thus reduced to $218,277.50.

The second question to be determined relates to the time when the legacy is payable. On behalf of Loyola College the view is urged that, according to a proper construction of

all the circumstances, the legacy is payable use in the erection of a Cathedral Church in at the present time.

the city of Baltimore. If the legacy to the college were to be taken out of the estate before the period designated by the will, a very considerable difference would be made in the amounts of the proportions to be received by the Cardinal and by the corporation substituted by the first codicil for the Sisters of the Bon Secours. There is nothing in the terms of the codicils to justify a construction which would cause such a material variation from the testator's plainly indicated plan of distribution.

The bequest to the college is directed to be paid out of a portion of the estate which, as the will expressly provides, is to be ascertained after the death of the testator's wife, who is still living. The purpose of the will that the legacy should not be paid during the widow's lifetime is therefore unmistakable. But the argument is that the codicils reveal a different intention, especially when considered in the light of the extrinsic proof. [4] In so far as the codicils relate to the bequest to the college, the only changes they The case of Emory v. Emory, 91 Md. 531, purport to make are: First, as to the object 46 Atl. 977, cited in support of the opposite to which the bequest is to be applied; and, view, was concerned with a will and codicil secondly, as to its amount. Except for the which differs substantially in their terms modifications thus effected, the will is ex- from those we are now construing. In that pressly confirmed. It is a settled rule of con- case an annuity of $1,000 to the testator's struction that a will and its codicils must be wife was charged by the will, in equal shares interpreted as one instrument, and the pro- of $125 each, upon tracts of land devised visions of the will are to be given effect ex- separately to his eight children. By a codcept to the extent only to which they are re-icil the devise to one of the children was voked by the codicils, either in terms or by revoked, and the same land devised in trust a clear inconsistency between the earlier for purposes and under directions which preand later expressions of the testator's in- cluded the existence of a charge on that tention. Lewis v. Payne, 113 Md. 127, 77 property of any part of the annuity for which Atl. 321, 30 L. R. A. (N. S.) 908; Buchanan the will made provision. The codicil was v. Lloyd, 88 Md. 642, 41 Atl. 1075; Hutchins therefore held to have the effect of relieving v. Pearce, 80 Md. 434, 31 Atl. 501; Halsey v. that particular land from the payment of the Convention, 75 Md. 275, 23 Atl. 781; Thomas proportion of the annuity with which it had v. Levering, 73 Md. 451, 21 Atl. 367, 23 Atl. been originally charged. Clearly that case 3; Johns Hopkins University v. Pinckney, has no force as a precedent in the one now 55 Md. 365. being decided.

It

[5] The codicils under consideration, in changing the object and amount of the bequest to the college, make no reference to the time of its payment. But the will speaks clearly and definitely on that subject. directs that after the death of the testator's wife the legacy shall be paid out of a portion of the estate, which is then for the first time to be segregated. In order to make the bequest payable at an earlier period, it would be necessary to change radically the consistent testamentary plan upon which the will was constructed. It is provided by the will that the whole residuary estate shall be held in trust during the life of the testator's widow, and the right of disposition by will is given her as to $250,000 of the estate, and it is directed that, upon her death, one-third of the estate, remaining after a sufficient portion has been set apart to yield specified annuities for his sisters and brother, shall be paid to the Sisters of the Bon Secours for the founding and maintenance of a hospital, and out of the other two thirds the legacy of $500,000 to Loyola College, and the balance is bequeathed to Cardinal Gibbons for

[6] It was earnestly argued that the action taken by Mr. O'Neill in his lifetime with a view to the erection of the church, to the cost of which the legacy to Loyola College was intended to be applied, is inconsistent with the theory that the legacy is not payable until after his widow's death. But it is the intention of the testator as expressed in his will and codicils, and not the desire, manifested by his conduct, to have the church built during his life, that must determine the question now being considered. While it was apparently his hope and design to have the church erected before his death, we are not authorized on that account to construe the formal declarations of his testamentary purpose contrary to their obvious meaning.

The conclusions we have stated are in agreement with those reached by the court below, and its decree will be affirmed. It is proper, under the circumstances, that the estate should bear the costs of the proceeding.

Decree affirmed, the costs to be paid out of the estate.

(113 A.)

jured at a pleasure resort known as Glen STATE, to Use of HAMEL, v. GLEN ECHO Echo Park. The accident occurred on the 23d June, 1918, the deceased died on the following day.

The car when loaded was started by a man called a "starter," who gave it a push which carried it some 10 or 15 feet, where STOCKBRIDGE, J. This suit was brought another man was stationed, who likewise in the name of the state under Lord Camp- continued the pushing process until by means bell's Act, for the benefit of the widow and of a mechanical contrivance the car autochildren of J. Joseph Hamel, who was in-matically caught a chain, which drew it up

a slight incline to the apex, where the chain (be a logical relation and connection between the was released, and from that point on the circumstances proved and the conclusion sought car was run entirely by gravity. The entire to be adduced from them." length of the track was a little over 1,900 feet, and the time occupied for it to make its trip upgrade and downgrade and around the curves was a minute and a half, which will give some idea of the speed of the car.

And in the case of Knottnerus v. Railroad

Co., 93 Mich. 348, 53 N. W. 529, 17 L. R. A. 726, it was said:

"A roller coaster is not a snare or an explosive. It is, in and of itself, notice of its character and purpose. Its presence and operation involve no danger to those who keep away from it, nor does its enjoyment necessarily involve injury. They [the pro

There was also uncontradicted testimony to the effect that the starter, and one or possibly two other employees, called out to Mr. Hamel to sit down, and to each of these he replied that he was all right. The same advice was given him by one or more fellow prietors of a pleasure resort] do not thereby become insurers of the person while in attendpassengers in the car. After the car had pro-ance upon the attraction, or responsible for ceeded on its course some 900 feet, and when the carelessness of the operators." rounding a curve, which was out of sight from any of the employees of the defendant, Mr. Hamel was thrown from the car, and sustained the injury from which he died on the following day.

No question is raised as to any imperfection in the car or the track, which could have occasioned the accident. On the contrary, the testimony is that both had been inspected that morning, and found in good condition, and the only act claimed by the plaintiff as constituting negligence on the part of the defendant lay in permitting Mr. Hamel to ride without requiring him to take a seat upon one of the seats with which the car was equipped. There was no positive testimony tending to show that there were vacant seats in the car, but the warnings spoken, and those which Mr. Hamel read, brought home to him a knowledge of the regulations of the company which were designed, and could only have been intended to safeguard passengers in the cars on this railway.

[1, 2] Under these circumstances it cannot be said that the defendant was guilty of negligence of a character to render it liable in an action like the present. The facts already detailed do show conclusively that Mr. Hamel was guilty of contributory negligence.

In the brief of the appellant it is said: "It is fair to assume that he [meaning Mr. Hamel] was unaware of the nature of this device, and of the extreme danger to which he exposed himself."

This statement is not in accord with the

adjudicated cases. Thus in the case of Benedick v. Potts, 88 Md. 52, 40 Atl. 1067, 41 L. R. A. 478, a case having many points of similarity to the one under consideration, where a man was injured by a similar device at Tolchester, Judge McSherry said:

"It is a perfectly well-settled principle that to entitle a plaintiff to recover in an action of this kind he must show, not only that he has sustained an injury, but that the defendant has been guilty of some negligence which produced that particular injury. The negligence alleged and the injury sued for must bear the relation of cause and effect. The concurrence of both and the nexus between them must exist to con

This was a case of a balloon ascension at a

pleasure resort, where a pole fell and injured two of those watching the ascent.

There remains to be considered the ground of the action lastly relied on by the plaintiff, and which involves the doctrine known as the last clear chance. The rule of the English courts, and generally followed in this country, makes a personal injury the fault of him who has the last clear opportunity to prevent it. 11 C. J. 280, and note 29.

[3] The party who has the last opportunity of avoiding an accident is not excused by the negligence of any one else. Many cases have attempted to give a definition of the last clear chance. As concise a one as any is that given in McCormick v. Ottumwa Ry. & L. Co., 146 Iowa, 119, 124 N. W. 889, when that court said:

that has the last clear opportunity to avoid the "Where both parties are negligent, the one accident, notwithstanding negligence of the other, is solely responsible for it; his negligence being deemed the direct and proximate cause of it."

Courts in order to do substantial justice have frequently invoked the doctrine, and have carried it, it would seem, to the limit, and already there are signs of a swing of the pendulum in the opposite direction. Thus in two recent Oregon cases it is held that in order to invoke the doctrine the plaintiff must plead and prove that the defendant after perceiving the danger and in time to avoid it negligently refused to do so. This doctrine of the law, and the cases in which it is properly applicable, have been well considered in this state, and will be found clearly stated in the case of the United Rys. &

Electric Co. v. Kolken, 114 Md. 160, 78 Atl. 383, where Judge Thomas carefully reviews the subject.

[4] In view of these various adjudications, and of the rule enunciated by Judge Alvey in Md. Central R. R. Co. v. Neubeur, 62 Md. 391. it seems clear that the doctrine of the last clear chance cannot properly be invoked in this case.

(113 A.)

cuit court for Montgomery county, where this | made statements at variance with his own, but case was tried, the judgment appealed from will be affirmed.

OFFUTT, J. Andrew Reid Myers and Herbert Myers were convicted in the criminal 5. Witnesses ~255(11)—Proper for court to court of Baltimore City of having and receivask when memoranda referred to by witnessing an automobile knowing the same to have were made.