50 A. 406 | Md. | 1901
The declaration filed in this case by the appellee against the appellant contains six counts. The defendant filed a demurrer to the whole declaration, and not to each count, which was overruled and, having refused to plead, judgment by default was entered against him, which was subsequently extended for the amount of plaintiff's claim. Although alleged technical errors in thenarr. are suggested in the briefs, an agreement of the attorneys was filed at the argument showing that it was the desire of both parties to have us determine *724 whether the instrument sued on is a valid obligation, binding the estate of defendant's decedent, and, as it is set out in full in one of the counts, we will pass on that question, without considering the technical defects alleged to exist. The instrument which was executed by William J. Feeser, under seal, is as follows: "$204.68. Due David H. Feeser the sum of two hundred and four dollars and sixty-eight cents, with interest from date, and said sum of money and interest is not to be paid during my life-time, but to be paid by my executor, out of my estate within one year after my death, and said sum of money is due and owing by my said son, Ezra D. Feeser, to the said David H. Feeser. I bind my executor to pay the same out of my estate as aforesaid, and then to be deducted of the distributive share coming to my said son, Ezra D. Feeser, out of my estate. Witness my hand and seal this 24th day of August, 1887."
It was said in Carey v. Dennis,
The statements that "said sum of money is due and owing by my said son, Ezra D. Feeser, to the said David H. Feeser," and that it was "to be deducted of the distributive share coming to my said son, Ezra D. Feeser out of my estate," did not in any way relieve the obligor from the indebtedness. The object of inserting that provision is perfectly manifest. His intention doubtless was to charge his son, Ezra, with the amount so to be paid David H. Feeser, and when the executor paid it he would be entitled to the bill obligatory, which would on its face show the intention of the maker that his son, Ezra, should be so charged with it. Whether or not that can be done need not be considered by us, as it is not before us, but the insertion of such a provision cannot relieve his estate from the payment of the debt. We are of the opinion that the instrument is a valid obligation, binding on the estate of William J. Feeser, and the judgment will therefore be affirmed.
Judgment affirmed, costs to be paid by the appellant out ofthe estate.
(Decided November 22d 1901.) *727