64 Md. 238 | Md. | 1885
delivered the opinion of the Court.
This is the second appeal in this case. The questions now before us relate to the advancements made by Joseph Dilley to Barney Dilley, Mr. and Mrs. Edwards, and Mr. and Mrs. Everett. The deceased in his life-time made large advancements to his children, and carefully preserved the evidences of their several amounts. At the time of his death, most of them were in a trunk which was kept in his bedroom. Some of the most important of the papers, which were kept in this trunk, have disappeared in a manner which has not been satisfactorily explained. Mrs. Margaret Edwards (daughter of the deceased,) testifies that she came to her father’s house a few moments after his death; that Barney Dilley and his daughter Edith, (now Mrs. Brace,) the servant Young, and Daniel R. Long were in the house, and that the key was in the trunk, and the trunk was empty. She also says that she made inquiry of Barney Dilley about the books and papers, and that he said that his father never kept any valuable papers about the house. Testimony was given by Mrs. Brace that shortly before his death, her grandfather burnt some of the papers which were in the trunk, and gave her the remainder to put back in it, which she accordingly did; that she next saw the papers three days after his death in the top of the trunk where she had put them; and that in the presence of her father and of Benjamin Edwards, Miss Ida Everett and Miss Hoblitzell, she put them in a satchel and delivered the satchel to her father and Edwards. We will see hereafter how these papers have been accounted for.
It is shown very clearly that Joseph Dilley gave his children large sums of money and that he kept an account of these sums, with the intention that when his estate was distributed after his death, each of his children should be charged with the amount he had received, so that his property might be equally and impartially divided among them. He usually, perhaps always, took notes from them showing the amounts of his gifts. These notes he preserved carefully up to the time of his death. There is some evidence that he also kept an account or memorandum book showing the amounts given to his children; but the proof on this point is not very distinct. Of course, if his notes and papers could be obtained, there could not be the least difficulty in ascertaining these different amounts, and in making a perfectly fair division of his property among his children. But as in some instances they have disappeared, we are, of necessity, obliged to rely upon the more uncertain and unsatisfactory evidence set forth in the record. It is morally impossible that our conclusions should be accurate. We at best can only hope to make an approximation to true results. But the blame must rest on those who have destroyed or concealed the evidence which would remove all obscurity on the subject; and when from the want of this proof, we fall into errors, the loss will justly fall, on those whose misconduct has destroyed the means of arriving at the truth.
The Circuit Court decided that the advancements to Barney Dilley amounted to $21,192.52. His father through a long series of years had been supplying him with money, and in the course of this time had taken from him a large
He states in his testimony that his father told him that he had received from him more than his share of the estate. Other witnesses testify that his father made the same statement to him on different occasions, and he did not question its correctness. Seiss testifies that he said he had given him over 140,000. We suppose that the witness means that this statement was made to Barney ; but it is not altogether certain that this is his meaning. Barney in his answer states that with the exception of a certain judgment confessed by him in favor of his father, he has no knowledge of any evidence of his father’s intention to charge him with money advanced in any manner, and that his father helped him from time to time with small amounts of money when he was in need, but that he never had the slightest idea at any time that such assistance was intended in any other way than as a gratuity, and that he is unable to say, and that no evidence can be found as to what said amounts were in the aggregate, so far as he is concerned, any more than as to his other children; and he insists that it would be “ the worst kind of injustice ” to construe as advancements the amounts which he had received; for the reason, that it is impossible to tell what amounts had from time to time been given to his several children by the decedent, or what was his intention as to the manner in which the same should be received. Appearing as a witness in his own behalf Barney testifies to various sums of money received irom his father, for many of which he states that he had given notes. He says that he has not been able to find any of the notes which he had given except two ; or any note given by Mr. and Mrs. Edwards; or any given by Dr. Everett, except those which will hereafter be more particularly mentioned. Prom the items mentioned in his testimony, the auditor compiled a state-
The Circuit Court determined that the advancements to Edwards and wife consisted of the Eorsythe farm at §1500, the Union Street house at §2350, the Union Street lot at §950, the note of Edwards and wife for §10,000, and §1000 in April, 1814, amounting to §15,800. We think that to this amount should be added the checks of Joseph Dilley drawn to the order of Edwards, and cashed
Mr. Seiss testifies, that on one occasion Joseph Dilley showed him a number of Dr. Everett’s notes payable to Dilley, and requested him to look at the amount, and that he added up the amounts of the different notes, and found the sum to be more than twenty-four thousand dollars, without interest. He says the time was soon after the return of. Everett from Parkersburg, where he had been building a barrel factory, and he thinks it was in 1868. He states that sometime after this occurrence, at the request of Joseph Dilley, he wrote a note for $7,000, payable to Dilley, which in his presence Everett signed and gave to him, and that this note was in substitution for two others, which Dilley then had, and which he said he had paid to J. Philip Roman for Everett. These notes were signed by Everett, payable to Joseph Dilley and endorsed by him. Seiss also testifies that on the day he counted the notes, Joseph Dilley said to Everett something to this effect: “Now, you see what I have done ; I have kept you ever since you were here, and until the Roman notes are paid; yet you will have more than your share amounts to.”
They showed, undoubtedly, that large sums had been advanced ; but we have sought information as to amounts and details from other evidence. As to the testimony of Acidan Dilley, we may say that he is supported in many particulars by other witnesses; where he has been unsupported we have not been willing to found any conclusion upon his evidence. As the Circuit Court seems to have permitted Barney Dilley and Edwards to retain in their hands the moneys, which at one time they were ordered to bring into Court, we do not think that they should be charged with interest.
The result of our opinion is, that the order ratifying the auditor’s report and the accounts must be reversed, and the cause remanded with directions to state accounts in accordance with this opinion. There must be new accounts, but no further testimony can be taken. The costs in this Court must be paid out of the estate.
Order reversed, and cause remanded.
This case was ordered to be re-argued, and upon the re-argument, at the October Term, Judge Betas delivered the opinion of the Court.
The second appeal in this case was decided at the last April Term. On the petition of Dilley, and the Edwards and Everett heirs, a re-argument was ordered at the present term. We have carefully re-examined the very voluminous record in the cause, and have given a deliberate and anxious consideration to the arguments of counsel. In our judgment, the conclusions of the opinion delivered at the April Term were, with one exception, just deduc
We do not consider it necessary to recapitulate the details of the vast amount of evidence contained in the record. It will answer every useful purpose if we state the conclusions which are properly deduced from it. It is very certain that after Joseph Dilley’s death bis papers were delivered to Barney Dilley and Benjamin Edwards, by Miss Edith Dilley, (now Mrs. Brace) in the presence of Miss Ida Everett and Miss Hoblitzell, and that many of these papers have since been destroyed, or suppressed. It is also certain that the missing papers would shew large advancements to Barney Dilley, and Mr. and Mrs. Edwards, and the Everetts. There could be but one conceivable purpose in putting these papers out of the way. The spoliation, by whomsoever committed, was intended to promote the interest of Barney Dilley, the Edwards and the Everetts, by relieving them from the necessity of bringing these advancements into hotchpot. It does not appear that the papers were disturbed, which showed advancements to the other heirs of Joseph Dilley. It is our duty to prevent this, contemplated injustice by all the legitimate means in our power. Exact justice is out of the question; it has been prevented by the destruction of the means of attaining it. We can, however, charge these parties with such sums as the evidence shews they received
The affidavits filed with the motion for a re-argument in hehalf of the Edwards heirs, satisfy us that the purchase money of the Union street house was paid out of the proceeds of the check for $2500, dated October 8th, 1812. It is just that this sum ($2350) should be deducted from the amount of the advancements charged in our former
In the former opinion we found the amount chargeable to the Everett heirs to be §29,511. We see no reason for changing our decision on this point. It may be well to notice a remark made in that opinion about certain notes
We understand the complainants to insist that no portion of the assets in Court for distribution should be paid to Barney Dilley, or any of the sureties on his administration bond until the other distributees are paid their portions in full; the allegation being that the administrator is insolvent, and the sureties in failing circumstances. It is not in our power to impound the shares of these parties for this reason.
The former order must be modified according to the views expressed in this opinion.
Previous order of this Court rescinded, and. the order appealed from reversed, and the cause remanded.