12 Md. 274 | Md. | 1858
delivered the opinion of this court,
The bill in this case was filed by the 'appellants, who were the slaves of the testator of the appellee, and who claim to have been manumitted by his last will and testament. It alleges, that the appellee had taken out letters of administration, and had proceeded to some extent in the discharge of his duty as such, but had not returned to the orphans court a full account of his doings as he was required to do by law; that the estate is indebted, some of the claims against which had been prosecuted to judgments which were about to be executed by a levy on the appellants; that some of the judgments were obtained on obligations, in which the testator of the appellee was but security for a person who is a legatee under the will. It avers that theré is property above and beyond what is necessary to pay all the debts of the estate without a resort to them, and that by a proper construction of the will of their master and a proper marshalling of assets, the debts of the estate would be paid and they entitled to their freedom; (hat they had filed a petition for freedom, but that they were unable to prosecute it successfully because of the difficulty in showing the true condition of the assets of the estate. They pray the court to take cognizance of the matters involved, and to so order a marshal-ling of the assets, and adjudge the respective rights of the several parties interested, as will enable them to clearly establish, on the trial of their petition for freedom, the true condition of the estate and their relation to it, and that until this be done, (he petition case be stayed by an injunction, and also the ex-
The court refused the injunction. It was argued that the court properly did so, if for no other reason, because the bill was not, verified by affidavit. In general it, is necessary that the bill should be sworn to, but this is not in all cases indispensable. Here, the complainants are negroes, and, under our act of Assembly of 1846, incompetent to give testimony in any case in which a white person is interested. They, therefore, could not have made the affidavit. What is required as preliminary to the granting of an injunction, other than the sufficiency of the averments of the bill, is, that the confidence of the court should be obtained, and this maybe had on documentary evidence as well as on affidavit. Salmon vs. Clagett, 3 Bland, 162. Jones vs. Magill, 1 Bland, 180. Alexander's Ch. Prac., 80, 81. The evidence accompanying the bill, is an authenticated copy of the will of the testator of the appellees, by which it appears the appellants are set free. There coidd be no fuller evidence offered of the ground on which rests their claim to freedom. If they be entitled to it at all, it is because of the bequest, of it in the will. It is their muniment of title. There is nothing in the objection that no bond was tendered. No bond could be tendered until the court fixed the amount of the penalty. Had the court granted the injunction it would doubtless have done so, on the condition that a prescribed bond should be first filed.
The case of Cornish vs. Wilson, 6 Gill, 299, is a sufficient precedent for a proceeding like the present. The manumitted slaves under the decision in that case, have a right to the aid of a court of equity, in the marshalling of the assets of the testator under whose will they claim their freedom; and thus to procure the proper evidence to enable them to prosecute their petition for freedom. They are also, as determined by the same authority, entitled to the decision of such a tribunal, as to whether the real estate of the testator is charged with the payment, of debts in favor of the bequest of freedom, and the proportion in which specific and general legacies are to con
Order reversed and, cause remanded.
