| Md. | Jul 2, 1869
delivered the opinion of the Court.
This case is before us upon appeals from a decree of the Circuit Court for Prince George’s County, sitting in equity, passed on the 13th July, 1867, as well as from an order of said Court, passed on the 20th June, 1868, ratifying the auditor’s account, stated in accordance with the directions of the said decree. The questions presented by the record, which, in our judgment, are material to be considered, are, first, whether the appellant is chargeable with the sum of five thousand dollars as assets of the estate of his testatrix, and with interest thereon? and, secondly, whether there was any error in the rulings of the Court below upon the exceptions filed by the respective parties to the evidence and to the alleged insufficiency of the averments of the bill of complaint, and to the auditor’s account ? The bill was filed to recover from the appellant the sum of one thousand dollars, a legacy bequeathed to
It was urged in argument for the appellant that he was prevented by the late civil war from bringing the negroes, who were then in the State of Louisiana, into the estate within the time required by the condition of his bond, and that, as that instrument left it optional with him whether to bring them into the estate or pay the money, he was released from the payment. Even if he was prevented from bringing them in, we cannot see upon what principle of law or equity he would be thereby released from the payment of the money. But there is no reason to believe that it was impossible that the negroes could be brought into the estate, had the appellant desired it. More than a year elapsed after the death of Mrs. Daingerfield before intercourse between the citizens of this State and those of Louisiana was prohibited by any law, or act, or proclamation, passed by Congress or issued by the President of the United States, during which time this condition of his bond might have been performed by the appellant. The will was admitted to probate in November, 1860, and in January, 1861, the appellant returned a list of debts due the estate of the testatrix, in which he included the debt, due by him upon his bond. This we consider as an election made by him within the time required by the condition of his bond to pay the money and to keep the negroes. The will of the testatrix charged the payment 'of the legacy to the appellee, upon the whole of her estate real and personal, and provided that the appellant, who was one of the principal legatees, should receive no part of the property thereby bequeathed and devised to him, until he should have paid the legacy. The appellant, having taken out letters testamentary under the will and returned his bond in the list of debts due the estate, and charged himself in his account in the Orphans’ Court with over seventeen hundred dollars interest thereon, has
The exceptions filed by the appellant to the evidence of the appellee, and to the alleged insufficiency of the averments of the bill of complaint, were properly overruled, as it does not appear to us that the evidence excepted to was in any manner liable to objection, or-that the averments of the bill were insufficient.
The copies of the mortgage and the release of mortgage offered by the appellant, and excepted to by the appellee, were not authenticated according to the requirements of law, and the court below correctly sustained the exceptions to them. But even had they been admitted, they would not have been proof of the satisfaction or release of the bond of tfie appellant. The mortgage was executed to secure the payment to Mrs. Daingerfield of the interest of said bond yearly during her life, but the release of this security by no means released the debt due upon the bond. But even if the release of the mortgage could have raised a presumption of a release or satisfaction of the debt due upon'the bond, that presumption would be completely rebutted by the acts of the parties since the date of the release. The fact that Mrs. Daingerfield recognized the existence and binding force of the bond in 1853 by her will, and in 1859 by the codicil to it, and the payment of interest thereon for years afterwards by the appellant, and his returning it in the list of debts due the estate of Mrs. Dangerfield, leave no room to doubt that the parties to the release of the mortgage never intended at the time, and have not since then considered, that the debt due upon the bond was thereby released, or the obligation of the bond itself was in any way impaired.
As there are assets of the estate in the hands of the appellant sufficient to pay the debts and legacies, we do not
Five exceptions were filed by the appellant to the audit- or’s account. The first of these exceptions was to a charge against him of the amount of Sansbury’s indebtedness to the estate of the testatrix. The appellant had returned this among the sperate debts, and there is nothing in the ease to show it was not paid, except a statement in the appellant’s answer in this case, which is not evidence of the fact.
The second exception is to the charge of interest on the bond after the death of the testatrix, and with which, it is urged, he is not chargeable. "What we have before stated upon the main point of the case is a sufficient answer to this exception.
The third and fourth exceptions were taken because the appellant was not allowed interest on the sums which he was credited with for the support of the negroes belonging to the estate. As he had assets in his own hands to apply to these allowances, immediately upon their being passed by the Orphans’ Court, he is not entitled to interest upon them.
The fifth exception was taken to the charge against him of the amount of the bond and interest thereon. This exception has already been disposed of in what we have said in another part of this opinion. These exceptions were correctly overruled, and the decree and orders appealed from must be affirmed.
Orders and decree affirmed.