Buckley v. Buckley

9 Gill 497 | Md. | 1850

Magrvder, J.

delivered the opinion of this court.

This appeal is from a decree of Baltimore county court, sitting as a court of equity.

The bill was filed by a person, who alleges herself to be one. of the four children of Timothy Buckley, and expressly charges that her father died,leaving four children. It is filed to recover her share of her father’s estate; of course onc-fourth of wiiat remains in the hands of the administratrix, after paying debts, &c., and deducting the widow’s portion.

Now if there were four children when the intestate died, this complainant can claim of the defendant only one-fourth of his estate. Patrick may have died immediately after his father, without will or children; the complainant may be one of his distributees, yet her share of his estate, she must recover from his administrator, although there be nothing for such administrator to do, except to pay funeral expenses, collect from his father’s widow his share of the estate, in her hands, and distribute it among his legal representatives.

The allegation is that she is entitled only to one-fourth, and she cannot claim one-third without amending her bill, if perchance she was mistaken when she stated that her brother Patrick was not dead when her father died.

Here then is error, whether the father survived the son, or the son survived the father, and is now, oris not now, dead. If the father outlived the son, then the law entitled her to all that she has recovered, but her bill of complaint denies it. Which of them died first is to be ascertained by the complainant, and although there is some evidence in the record taken to prove that the father survived the son, yet it is by no means satisfactory to the court. The complainant suggested the death of the son, and that son’s representative has never been mode a party to the suit.

It would be difficult for us to tell how these errors are to be corrected, but as the case now stands, it is impossible to affirm or modify the decree.

The pomplainant gets the court to take her bill joto confessa, and now would insist that the bill in a material part of it is untrue. If there was satisfactory proof in the record that there were only three children, still, when the bill is taken pro, confesso, how can she contradict it? Her bill cannot be impeached by her adversary, and surely it cannot be impeached by herself. The case of West and Hall, 3 H. & J., p. 223, warns us of some of the evils which may result to, the complainant sometimes hy a decree of this description.

This is a bill against an administratrix, asking a distribution of the intestate’s estate, and making all the distributees parties. It was sent to the auditor to take an account of the assets, and he ascertains the sum due to each distributee, yet no notice is taken of the share of each of the other distributees. A decree is passed directing the payment by the administratrix of the supposed share of the complainant, and no payment to tfie othprs is directed, although the report which ascertains what is due to them is confirmed. Indeed they are not even “dismissed hence.” This cannot be right.

DECREE REVERSED WITHOUT COSTS, AND CASE REMANDED.