59 Md. 218 | Md. | 1882
delivered the opinion of the Court.
Charles M. Thruston, of Allegany County, by his will, appointed Charles P. Manning and George A. Thruston, his executors. George A. Thruston having died, Charles P. Manning, became surviving executor. These cross-appeals grow out of orders of the Orphans’ Court, of Allegany County, upon the surviving executor’s accounts. One of the questions presented involves the construction of the will. By the first clause the testator gives certain real and personal property to his wife for life. By the
The fourth clause gives all the residue of his property, including the remainder, after the death of his wife, in the property given her, to his executors for sale and distribution in accordance with the next clause of the will, which is the fifth clause, and is as follows: “I give and bequeath to each of them, my son George A. Thruston, his heirs and assigns, and my daughte'r, Jeannette Manning, her heirs and assigns, one-third of all the rest, residue and remainder of all my estate, real, personal and mixed, and to Rosalie B., Elizabeth H. and Charles M. Thruston, children
The facts as admitted are, that Charles B. Thruston died in 1868, before the will was made, which was made in 1869; that the testator died in 1873; that George A. Thruston died the 4th of May, 1874, and the widow of the testator Nov. 14th, 1881. It is also admitted that at the time of Charles B. Thruston’s death, his father the testator was liable for (and afterwards paid) the sum of nine thousand nine hundred and twenty-nine dollars and eighty-five cents, ($9929.85) as surety for Charles B. Thruston; and that the testator afterwards proved the same against the estate of his son Charles and received dividends thereon which reduced the sum paid on account of suretyship for Charles B. Thruston, by his father, to the sum of forty-seven hundred and fourteen dollars, and ninety-six cents, ($4714.96.)
In the account which was propounded by Charles P. Manning, surviving executor, on the 11th of August, 1882, which was the fourth account upon the estate, the executor charges himself with sundry amounts of cash received since his last accounting, amounting to $6251.95, and prays allowances for sundry disbursements, including an overpayment of $22.66 on his third account, amounting in all to $730.57, and reducing the amount actually in hand to $5521.38. To this sum he then adds $4714.96 under the following description: “Advancements to the estate of Charles B. Thruston, deceased heir of Charles M. Thruston, deceased, per statement annexed and recorded with.
■“ To the Estate of George A. Thruston, ‘ son,’ amount of former dividend...................$2716 03J
“Distribution in this account to the estate of Geo. A. Thruston, '‘son,’ is accounted for as follows:
“Paid John H. Young,‘note,’Geo. A. Thruston 916 59
“R. W. Pucy, ‘note,’ “■ “ 546 69 .
“Executors S. P. Smith, “ “ 496 21
“M. M. Townsend, “ “ 364 73
“The above claims with interest to date were paid by C. P. Manning, surviving executor of C. M. Thruston, deceased, are hereby charged by him to the estate of Geo. A. Thruston as portion of that estate’s distributive share in this account. The said claims being notes given by the late Geo. A. Thruston, and guaranteed by the late C. M. Thruston.
“ Paid Estate of George A. Thruston, ‘son,’............................................. 436 47
$5476 72§
“To M. Jeannette Manning, ‘ daughter/ amount of former dividend... 2716 03 J
“Distribution in this account..........2760 69
■—---$5476 72i
“ To the heirs of Charles B. Thruston, £son,’ advancements as per statement of Charles P. Manning, &c. * * *.............................$4714 96
“Interest, &c. * * *.........................3899 31
-- 8614 27
$19,567 72”
On the 11th of August, 1882, this account was rejected, and the Orphans’ Court ordered another account to be stated.
The directions for that account declared the money paid for Charles B. Thruston “ after said Charles B’s decease, is an advancement to the heirs of said Charles B. Thurston, and no interest is chargeable on such advancement, and that as soon as there is distributed to the estate of George A. Thruston and Jeannette Manning, each the sum of forty-seven hundred and fourteen dollars and ninety-six cents ($4714.96,) the money arising out of the sales of the remaining property belonging to the estate, shall be distributed, after paying all debts and expenses of the estate, as follows, to wit: one-third to the estate of George A. Thruston, one-third to M. Jeannette Manning, and the remaining third to the .children of Charles B. Thruston,” and in stating the account ordered the executor to pay the several debts (which had been set off in the distribution against George as his debts for which his father was only security,) as debts of Charles M. Thruston proved against his estate ; and then to distribute the remainder of the estate to George A. Thruston and Mrs. Manning. The effect of this decision and order was to charge the estate
Technically this was not an “'advancement,” as-it is called by the Orphans’ Court and by the account; because it is not a case of intestacy. Clark and others vs. Willson, Adm’x, 27 Md., 700; Pole vs. Simmons and Pole, Ex’rs, et al., 45 Md., 250. But it does not follow, as has been contended, that because it is a claim against Charles B. Thruston’s children, and their distributive share of the estate, and not a technical advancement, it is of necessity an interest bearing debt. On the contrary, we think it
We think the Orphans’ Court was right in supposing that the testator intended his estate to be divided into three equal parts between his children (treating the children of Charles [the son] as representing one share), and in regarding the amount “actually paid” for Charles as a part of his estate for the purpose of distribution only, so that the other children would be put upon equality to the extent of the amount so paid for Charles. We think the Court was right also in charging no interest upon the amount paid for Charles, but the Court destroyed the equality of distribution by their ruling with respect to the debts of George paid by his father’s executor, and to that extent there was error. It is clear that the will contemplates equality between the living children and the children of the deceased son at the time when distribution could be made. And just here it should be remarked that because of the life tenancy of the widow, the sales creating the fund now being distributed could not be made until her death, so that this distribution was made at the very earliest practicable period.
The fifth clause of the will in express terms gives one-third of the estate to M. Jeannette Manning and George A. Thruston, his children then living, and the remaining “ third portion” to the children of Charles B. Thruston, his deceased son, by name; and in speaking of those children of Charles B. Thruston, twice in this clause is the portion given them called “the third” of the estate. In the
The intent to make an equal distribution between the children living and the representatives of the dead child, (counting them as one) being clearly gathered from the will, we think it equally apparent, from the language used, that the testator intended to equalize that distribution as of the túne it ought to be and could be made, by then charging against the children of Charles, his son, the sum actually paid on his (Charles’) account^ after his death, without any addition of interest from the time it was paid to the date of distribution. The testator declares “that all net amounts actually paid,” &c., for Charles B. Thruston shall be chargeable against the third part of his estate given to the children of Charles. The natural inference from the use of the words “net amount” and “sums actu
In Andrewes vs. George, 3 Simons, 393, the Vice-Chancellor rules as we do here. There the testator gave his personal estate to two trustees, in trust to pay his debts, and then to pay the income to his wife during her life, and after her death to pay over the capital to his five children; and then after reciting that on sundry occasions, when they were in especial need, he had advanced divers sums to certain of his children for their temporary relief, “ he directed that his trustees should, before they made such division or distribution of his estate, deduct and take from such of his said sons’ and daughters’ shares, so much money as had been advanced and lent to him, her or them by him, so as to render their shares quite equal and to the amount they would have been entitled to, had he not advanced the said sums of money.” The Vice-Chancellor held that the “ deductions should he made at the time when his property would become divisible,” and that interest
In respect to the other question, whether the debts of George A. Thruston, proved against his father’s estate, because he was surety therefor, and which had been paid by the executor, were properly set off against the distributive share of George, all parties who are represented in this Court, are agreed, that it was error on the part of the Orphans’ Court, to disallow such set-off, and to order the executor to pay the debts without charging George with them. It was not only right, but it was the duty of the executor to make the set-off and insist upon it. That was long ago settled in this State by express decision in this Court. In Smith & Talbott vs. O’Donnell, 9 Gill, 84, the equity of such rule, as to set-off, is most forcibly shown and emphatically laid down; and that decision was but the re-assertion of a time honored, and well established doctrine on that subject. Jeffs vs. Wood, 2 Pere Williams, 129; Sims vs. Doughty, 5 Vesey, 243; 1 Roper on Legacies, 929. In this case the decision of the Orphans’ Court
The only correction, therefore, necessary to he made in the account first proffered as the fourth account, and which was rejected by the Orphans’ Court, is to erase the charge of interest on the payments for Charles, then correct the addition by the deduction of the interest from the present total; and then make the distribution to correspond with the views herein expressed. The order of the Orphans’ Court passed on the eleventh day of August, 1882, rejecting the fourth account of the executor and directing the statement of a new account, and directing the method of statement will be reversed ; and the order of the 22nd of August, 1882, ratifying the account stated in pursuance of the order of the 11th of August, 1882, will he reversed; and the cause will he remanded to the end, that the fourth account of the executor, which was rejected by the Court may he modified in accordance with the views we have expressed. A reversal will he ordered in both cases; hut inasmuch as Mrs. 'Manning fails, as against the children of Charles B. Thruston, in her contention concerning the interest upon the payments for their father, she will be directed to pay the costs of her appeal. As the executor was in no way responsible for the order respecting the set-off against George A. Thruston, and did not defend it in this Court, the costs of the appeal against him hy Elizabeth H. Thruston and others, will he paid out of the funds in his hands.
Orders reversed, and cause, remanded.