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prior to his death. This was taken about 10 days before his death. I call your honor's attention in this behalf to this dialogue which took place between the prosecutor and the deceased: 'Do you know you are in pretty bad shape; the doctor does not think you are going to get better.' To that, if your honor please, the deceased replied in the form of a question, ‘A. He don't?' as Mr. Donaldson has it there. I wish further to call your honor's attention to the fact that in a dying declaration it is supposed that a man under fear of impending death, that his mind is swept from all hatred and all prejudice, and that he will tell the truth.
"The Court: It is supposed that he will tell the truth; whether his mind is clear of prejudice or all hatred is another matter.
“Mr. Wilson: And that it is fear of death which takes the place of the sanctity of an oath.
“The Court: Not that it is fear of death altogether, but that he will meet his Creator
“Mr. Wilson: Yes.
“The Court: That he will not be likely to tell an untruth. But I have read his statement myself very carefully, and I have pointed out some things there that I do not think should stand.
"Mr. Wilson: I have one other thing. The prosecutor asked this question, and your honor, I am reading this for the purpose of showing that if this statement itself shows that he feared impending death, and the fact that he was going to meet his Creator did not put the obligation on him to tell the truth, that is not a proper dying declaration. The question was: 'Q. You are telling us this, realizing you are not likely to get better? A. Yes. Q. Aren't you, or you would not, feeling that you were going to die, and you would not say that Saba shot you unless he actually did, would you?'. His answer to that was, ‘A. I don't know. I think, if your honor please, if a witness was on the stand and you asked him whether he knows whether he was going to tell the truth or not, and he said he didn't know, that your honor would remove him from the stand at once.
“The Court: No, I could not do that; I could not remove him because, if he said he did not know whether he was going to tell the truth or not, then the weight of his statement would be for the jury, and if they were not true, then the prosecuting attorney knows what he should do. Please let me take that a moment.
"Mr. Keidan: There are several matters involved in that question, your honor.
"The Court: Yes, I understand.
“The Court: I allowed it to go in on this. Here is why I allowed it go in:
“ 'By Mr. Kilpatrick: Do you know you are in pretty bad shape; the doctor does not think you are going to get better. A. He don't? Q. The doctor does not think you are going to get better. Do you know you are in pretty bad shape, that you are liable to die, do you know that you are in pretty bad shape, in fact you are going to die, do you know that? A. (The witness nods his head, Yes.)'
“Mr. Wilson: If your honor please there is nothing there showing fear of impending death. We all have to die. Doesn't show anything as to when he is going to die, and the doctor testified at that particular time there was no danger of his death; he was getting along well until two days before his decease.
“The Court: 'Q. I want you to tell us before you die. We hope you will get better, but it looks as if you would not. We want you to tell us who did the shooting, who was it, Julius, fired that shot?'
“Mr. Wilson: If your honor please the only person who was afraid that this man was not going to get better was Mr. Kilpatrick.
“The Court: I believe on the whole, from the statement, the deceased was impressed with the fact that he was going to die from these injuries, that is my judgment from reading the statement; that is why I allowed the prosecutor to enter it as evidence.
"Mr. Wilson: There is a further motion, if your honor please, and that is that the jury be instructed to disregard it, and that it be stricken from the record, each and every part of that statement which alleges that Sabo Christmas shot the deceased; that Sabo Christmas, the defendant. shot the deceased, as being nothing more or less than hearsay; the wit
ness from whom he received the information being here in court, and that he testified.
“The Court: No, I will allow it to stand. "Mr. Wilson: Give me an exception."
Of the 79 assignments of error relied upon by respondent for reversal, we find it necessary to consider only those relating to the foregoing matter.
This declaration was taken on Tuesday evening, July 15th, less than 48 hours after Cadarean received his wound, and he lived seven days thereafter. The evidence of the physicians tends to show that hopes were entertained of his recovery up to within two or three days of his death. It is elementary that before a statement made by the deceased shall be received as his dying declaration, a preliminary investigation shall be made by the court to determine its admissibility as such. Through this investigation the court must be satisfied that the declarant was in fact in extremis at the time the declaration was made, and that he made it under a sense of impending death. See 2 Wigmore on Evidence, $ 1451 and cases cited; 4 Encyclopedia of Evidence, p. 947, and cases cited. This court has held that it is proper to allow evidence as to the circumstances under which the dying declaration was taken to show whether it was really taken when the declarant was under the conviction of approaching and inevitable death, and evidence of this should usually be given in advance of proof of the declaration itself. People v. Knapp, 26 Mich. 112; Hurd v. People, 25 Mich. 405. See, also, Smith v. State, 9 Humph. (Tenn.) 9.
It is apparent from the proceedings quoted above that the only evidence the court had of the fact that the declaration was made by Cadarean under circumstances entitling it to admission was such as was afforded by the declaration itself. A careful analysis of this paper in our opinion falls far short of establishing the fact that at the time of Cadarean's examination he believed himself to be dying. He was not in fact in extremis at the time, but lived for seven days thereafter. Aside from this infirmity, it is apparent that he had no personal knowledge as to who fired the shot which ultimately caused his death. His statement that the respondent did so was based entirely upon what some one else had told him. The error of the court in admitting the statement was not corrected when on motion of the prosecutor two statements of Cadarean were sticken from the statement, “That girl she told me," and, “That girl says that Saba shot.” The statement if admissible at all should have been admitted in its entirety. People v. Knapp, supra, and cases cited.
Other assignments of error relative to the admission and exclusion of evidence and to the charge of the court are argued. In our opinion it is not necessary to consider them, as they are unlikely to arise on a new trial.
For the error pointed out, the judgment is reversed and a new trial ordered.
MCALVAY, C. J., and KUHN, STONE, OSTRANDER, BIRD, MOORE, and STEERE, JJ., concurred.
STENDER v. STENDER.
The first and most important rule to be observed in con
struing a will is to ascertain the intention of the testator and to give effect to that intention if it is legally possible; the entire instrument must be considered in ascertaining such intent.
Where decedent owned about $200,000 in real property at
the time he executed his last will, by which he bequeathed to his brother and former partner all the residue of his personal property, including his cigar manufacturing business and excepting two bequests of small amounts of money, and to his brothers and sisters, in a succeeding clause, one-fifth of the rest, residue and remainder of his property of every nature and description, and where he afterwards sold three-fourths of his real property on contract, the intention to divide the real estate equally at the time of executing the testament being clear, the change in status and condition of the real property should not be held to diminish the interest of the other brothers and sisters in the property sold upon contract. The language of the later clause is also interpreted as including per. sonal property remaining after the first four clauses had been given effect and it is held that there was no evidence that the intention of the testator so changed as to deprive them of their shares.
It is a principle of construction that when certain things
are enumerated and a more general description is coupled with the enumeration, the description is commonly understood to cover only things of a like kind with those enumerated; the reason for such rule being that the testator is presumed to have had only those things in mind.
Appeal from Wayne; Mandell, J. Submitted June 10, 1914. (Docket No. 44.) Decided July 24, 1914.