74 Md. 526 | Md. | 1891
delivered the opinion of the Court.
The bill of complaint in this case was filed by Jacob Albert and Frank Albert, executors of Augustus J. Albert,' deceased, against the administrator de bonis non and the next-of-kin of J. Taylor Albert, deceased, and against Augustus J. Albert, who was formerly a partner of J. Taylor Albert. The relief sought was a decree requiring A. J. Albert to pay over to the plaintiffs the sum of fifteen thousand dollars, which is claimed by the executors in one aspect as the property of their testator, and in another as a debt due by J. Taylor Albert in his life-time to his father, Augustus J. Albert, Sr. These alternative claims are resisted by the four children of J. Taylor Albert, who, together with the administrator de bonis non of their deceased father, have filed a cross-bill ■setting up title to the fund in themselves. The fund is confessedly in the hands of A. J. Albert, and the question is, to whom is the money payable ?
In 1868 A. J. Albert, Jr. and J. Taylor Albert, sons ■of Augustus J. Albert, Sr., formed a co-partnership in business. The capital was borrowed from their father ■who, as he furnished the money, was credited therewith
These are the leading facts and upon them it is insisted: First. That A. J. Albert, Jr., as administrator of J. Taylor Albert, paid in 1882 to A. J. Albert, Sr., the fifteen thousand dollars credited in 1812 by the latter’s direction to J. Taylor Albert on the books of the firm, or that A. J. Albert, Sr., in 1882 resumed control and ownership of the fund, and thereupon suffered it to re
When the money was originally furnished by the elder Mr. Albert to his sons and was entered to his credit on their books, it was undoubtedly a loan upon which interest was charged and paid, and which could have been demanded and payment of it enforced by the creditor, but the whole character of the transaction was changed in 1872 by the transfer of the amount due to the father to the credit of the sons respectively, to whom he thereby made what, had he died intestate, would have been technical advancements. All doubt as to the correctness of this conclusion is removed when it is remembered that subsequent aid extended to them by him was in the shape of loans and endorsements, and that the loans were afterwards repaid to him with interest. The father took and the sons gave, after 1872, no obligation to indicate that he considered or that they understood the capital of fifteen thousand dollars credited to each to be debts due by them to him. . For the ten years thereafter that J. ■ Taylor Albert lived, there is nothing to show that when A. J. Albert, Sr., released the firm from its indebtedness of thirty thousand-dollars to himself by the extinguishment of the credit he held, he regarded his sons individually debtors each for one-half of the same liability. The books of A. J. Albert, Sr., have not been put in evidence, and
It was entirely within the power of A. J. Albert, Sr., when he made his will, to have deducted from the one-eighth of his estate bequeathed to his deceased son’s
If the fifteen thousand dollars was a gift by the father to the son, the former’s executors cannot recover it from the latter’s administrator. If the amount was advanced by the father as a part of the son’s prospective share of the father’s estate, with an intention on the latter’s part to abate the son’s share to that extent, then, the son being dead and no share having been bequeathed to him, the grand-children are under the terms of the will, not chargeable with it. If, finally, it be included in the $18,000 charged against the son on the books of the father, and be not a gift from the father to the son, then the debt so charged would be recoverable by the executors from the son’s administrator, unless barred by the Statute of Limitations, which has been distinctly relied on. Assuming the claim to be of this latter character, we think the Statute of Limitations a complete bar to its recovery. If a debt at all it was created in 1812.
As we have reached a conclusion different from that announced by the learned Judge who decided this casein the Court below, we must reverse his decree, and remand the cause that a decree may be passed distributing the fund to the- children of J. Taylor Albert, deceased. It will not be necessary to send the fund into the Orphans’ Court, but the Circuit Court may properly make distribution of it without further delay. The costs to be paid by the appellees out of the estate of' their testator.
Decree reversed, and cause remanded.