| Md. | Mar 26, 1884
delivered the opinion of the Court.
The controlling question in this case arises upon the terms of the will of James Tosh, deceased, and as to the duty of the executors under the will, in respect to a legacy of $400, bequeathed to James E. Barnett, a minor, to he paid.to him on his attaining the age of twenty-one years, the interest in the meantime to he paid to two other parties. The form and terms of the gift are as follows:
“ Secondly. I give and bequeath to my beloved grandson, James Ellsworth Barnett, son of Nicholas and Rebecca J. Barnett, the sum of four hundred dollars, to be p>aid to Mm when he arrives at the age of twenty-one years.
“Third. I give and bequeath to my two beloved •daughters, Rebecca J. Barnett and Margaret Ellen Nichols, the interest of the above four hundred dollars, bequeathed to my grandson, Jgmes Ellsworth Barnett, to be paid to them annually, share and share alike; and I order and direct, that in the event of the death of either of my daughters aforesaid, the whole of the interest of the four hundred dollars aforesaid, to he paid to the survivor. And I further order and direct, that in the event •of the death of both of my daughters, the said interest to he invested lor the benefit of my grandson aforesaid, and to he. paid- to him when he arrives at the age of twenty-one years.”
It is admitted that the two daughters, entitled to the •annual interest of the fund, are both still living, and that ■James Ellsworth Barnett is still a minor. The executors, it seems, paid over the legacy of $400 to the guardian of the minor legatee, and that guardian, becoming insolveni, was -removed, and another was appointed in his stead;
No special direction was given by the testator as to who should invest the fund, collect the annual interest, and pay it over to the daughters. But in the absence of such special direction, it was the plain duty of the executors, and no one else. The testator manifestly contemplated that the fund should he invested during the minority of the grandson, in order to raise the annual interest for the benefit of his daughters; and as the duty of investment was not imposed upon any other person, it was, by necessary implication, devolved upon the executors, as one of the duties of their office. It was an active beneficial duty to the daughters, so far as the interest was involved, and also to the grandson, for the preservation of the corpus of the fund; and being a duty attached to their office, the executors could not divest themselves of it while holding their representative relation to the estate. They were at liberty, it is true, to apply either to the Orphans’ Court, or to a Court of equity, for direction as to the nature and mode of investment; but that does not necessarily imply that they should be released from the active duties imposed upon them by the will, or that they should be exonerated from all liability to account. The case would seem to be fully within the long settled doctrine of’ this State, as enunciated in the cases of Evans vs. Iglehart, 6 G. & J., 171; Hanson vs. Brawner, 2 Md., 90, and State, use of Dittman vs. Robinson, 57 Md., 486, 495-6, with respect to the duty of the executors to invest the fund and account for the income.
it is insisted on the part of the plaintiff that the legacy was paid over to the guardian by the sanction and under the direction of the Orphans’ Court, given by authority
In the first place, there is no legally sufficient evidence that the Orphans’ Court ever did, in fact, decree or direct such payment to be made to the guardian. The provision of the Code relied on contemplates an application, by the executor or party interested, to the Orphans’ Court, whereupon it is made the duty of that Court, “ to decree or direct what part of the personal estate shall he retained or appropriated for the purpose, and in what manner it shall he disposed of, and the legacy or. benefit intended by the will shall be secured to the person to be entitled at a future period or contingency,” &c. The only ground for concluding that the Orphans’ Court ever decreed or directed in reference to the matter, is the doubtful inference attempted to he drawn from the fact that in the account stated by the executors, and passed by the Court, credit is taken for the $400 as legacy due James E. Barnett, but without saying to whom, or by what authority, paid; and in an account stated and passed by the guardian, he charged himself with the legacy, without saying from whom he received it. In a matter requiring such careful deliberation on the part of the Court, and such particularity in the decree or direction to be given, it would not be safe to conclude that the Court had actually decreed or directed the legacy to be paid over, as contended by the plaintiff, upon such very informal, indirect and inconclusive evidence as that relied on in this case. Carlysle vs. Carlysle, 10 Md., 440.
But putting aside this objection, we are clearly of opinion the Orphans’ Court had no power, by any order that it could make, to relieve the executors of the active and continuing duty imposed upon them by the will.
It is urged on the part of the plaintiff that the case of Gunther & Canfield vs. State, use of Bouldin, 31 Md., 21, is decisive of this case in favor of the plaintiff. But that case is quite distinguishable from the present. In that case the legacy was given to the legatee in case he attained the age of twenty-one years; hut in the meantime, neither the fund itself, nor the interest that might accrue thereon, was specifically bequeathed, as in this case with respect to the interest. There was therefore no active or continuing duty on the part of the administrator with the will annexed, imposed by the terms of the will, in respect to the legacy, that required him to retain and invest the fund, such as there is in this case. And there being no such active and continuing -duty required of him by the will, he was, upon his own application, under the 10th section of the 93rd Article of the Code, allowed to pay over the legacy to the guardian of the legatee. Instead of directing the administrator c. t. a. to pay over the fund to the residuary legatee in that case, as could have been done, upon sufficient security, (Webber vs. Webber, 1 S. &
Such being the opinion of this Court, it follows that the prayer offered by the plaintiff ought to have been refused, and those offered by the defendant ought to have been granted. We must, therefore, reverse the judgment.
Judgment reversed,.