26 Md. 208 | Md. | 1867
delivered the Opinion of this Court.
The appellant, the complainant below, by his bill filed 28th of January, 1860, charges that the testator of theappellees, employed him as his agent from the 1st of January, 1838, and he continued to act as such to the death of the testator, who died some time in January, 1857, and after-wards discharged the duties of agent until the 1st of January, 1859, for which there was due to the appellant $661.89, after allowing certain credits, with interest from 1st of January, 1859. That the testator promised to compensate him for his services, and on several occasions within three years prior to his death, renewed his promise, to wit: in 1855 and 1856. That being seized and possessed of real and personal property, on or about the 4th of May, 1855, he duly made his last will and testament, etc., and amongst other things, devised to the appellees ail his estate, real and personal, to be sold, and the proceeds to be disposed of as directed therein, and appointed the appellees his executors. That one of the trusts upon which the real estate was devised to the executors, with power to sell the same, is the payment of the just debts of the testator, and that inasmuch' as the testator had promised, within three years prior to his death, to pay him for the services rendered, his claim was a just debt against the estate of the testator at the time of his death, not barred by limitations, and that he is entitled to be paid out of the proceeds of sale of the real estate which was devised to be sold.
The will, which is exhibited as a part of the bill, after providing for his burial, declares it is his anxious desire to make suitable provision for his wife, and after mature deliberation, he has concluded it can best be done out of the proceeds of sale of his real and personal estate, which he.thereby directs to be made by his executors, whenever and on such terms as the Orphans’ Court may direct, with the exception of such parts as he may reserve or specifically bequeath ; and he devises and bequeaths bis estate to his executors and the survivors of them for the purpose of such sale. The subsequent items of the will distribute the proceeds in various amounts, after giving ten thousand dollars to his wife, and making various pecuniary legacies. No reference is made to his debts until the 18th item, which provides as follows:
18.' “I desire that the directions of my will may be carried out as soon after my death as may be practicable, regard being had to the interests of my devisees and legatees, in order that my just debts may be paid and my estate be closed without unnecessary delay.”
He bequeathed all the residue of his estate to Samuel II. Wright, and appointed the appellees his executors. Two codicils were subsequently made, which do not in any manner affect the question before us. The appellees’ answers, after admitting the execution of the will, the death of the
They expressly deny that they ever employed him, as agent, and have no knowledge of any services rendered by . him for the estate, and are- advised that the- agency, if any> terminated, at the death of the testator.
They deny that the will creates any trust for the- payment of the debts of the deceased, and aver that the- appellant, if he had any demand against the deceased, has a full- and ample remedy at law.
They deny that their testator within three years- before-Ms death, or at any other time, promised to pay the said claim and if the appellant ever had any cause of action, against the deceased', or the appellees as executors, they aver the same was- barred by limitations at the time- of filing the bill,, and they crave the benefit of the-same as- fully as if formally pleaded.
A general replication was filed, testimony taken and returned, and upon final hearing a decree passed dismissring the bill, from which this appeal is taken.
The agency for which compensation is sought, was an agency between the complainant and the defendant’s testator, which terminated with his life. No renewal or recognition of this-agency by the respondents is alleged, or any promise on their part to pay the supposed debt of their testator.
The hill charges that the testator promised in 1855 and 1856, and within three years of his death, in conversations •with ether persons admitted his indebtedness,, but nowhere-.
There is neither allegation er evidence of any promise or •admission by the executors of the will. The latest evidence of promise or acknowledgment on the part of the testator, refers to July, 1856. This must be assumed to relate to services previously rendered, and cannot be construed so as to affect subsequent services. The testator, as alleged, died in January, 1851. The complainant’s bill Was filed on the 28th of January, 1860. The claim being •an open account, is barred by the lapse of three years from the time the cause of action accrued, unless there was something in the will, express or implied, to prevent such a •legal presumption.
The theory ©f the appellant is, that the testator having merged his personal and real estate by devising both to his executors to he sold, there was no obligation on them to pursue their remedy at law, and the will containing an express trust for the payment of debts, the Statute of Limitations does not apply to his claim.
It is not material to enquire whether the remedy should have been pursued at law as the Statute ef Limitations, if not suspended by a charge on the real estate expressly or by necessary implication, is conclusive of the case.
A trust must be created by express words or necessary implication, particularly a trust which charges the real ■estate with the payment of debts in exoneration of, or in ■aid of, the personal estate. It is the established doctrine in England and in this State, that the personal estate is the primary fund. Our Acts of Assembly only authorize proceedings against the real estate upon allegation and proof 'that the personal estate was insufficient at the death of the •testator.
In case of a will, silent upon the subject of the payment •of-debts, the devises and legacies are by law subject to tb**
The language of the testator, in the present case, is not “after payment of my debts, or my debts being paid, I devise and bequeath,” but after seventeen items, making bequests to more than twenty persons, he desires the directions of his will may be carried out as soon after his death as may be practicable, regard being had to the interest of his devisees and legatees, in order that his debts may be paid and his estate closed without urmecessary delay.
The words, “after my debts and funeral charges are paid, I devise and bequeath,” though at common law a charge on real estate in the event of a deficiency of personal assetts, are held now in Maryland to be almost unmeaning in form and rarely of any import. Since the Act of 1785, ch. 72, they are wholly immaterial and inoperative, as that Act of Assembly renders the real estate, in aid of the personalty, equally liable for the payment of debts, whether they are contained in the will or not. “No deduction as to the intention of the testator to make such a charge can be drawn from them,” per Dorsey, J. Cornish vs. Wilson, 6 Gill, 315, 316.
If an express charge, strong as the terms above cited, no longer .warrants the deduction that the testator designed to render his real estate responsible because the law already makes it so, the incidental allusion to his debts, in the 18th item, cannot be sufficient foundation for a trust or charge, express or implied.
In the case of Stevens vs. Gregg, 10 G. & J., 147, 148, this Court, after laying down the general principle that the personal estate is the primary fund for the payment of debts and legacies, even where they are expressly charged upon the real estate descending or devised, replying to the argument that an intention to charge the legacy in that case might be inferred from the residuary bequest of all the rest
The language used by the testator in this case indicates no purpose to change the order in which the assetts were applicable in law or equity. In the case before cited, it is said: “The natural presumption as to the intention of every testator, unless the contrary appears upon the face of the will, is that all his devises, bequests and directions shall be gratified and conformed to. He assumes himself to be in a condition to make them. In contemplation of law, no presumptions arise independently of what appears on the face of the will, that he designed the gratification of any one of his expressed objects more than another, except that he is presumed to know, or his last will and testament is to be construed as if he did know, the established principle of law ; ***** that debts and legacies are payable out of the personal estate, and are not by will chargeable upon the real estate of the testator, unless by the express terms of the will, or an implication arising thereon which is equivalent evidence of the testator’s intention to make the charge, that the use of express terms for that purpose would be.” Cornish vs. Wilson, 6 Gill, 320.
There being, in our opinion, no trust in the will for the payment of debts, no charge of the same, express or implied, ©n the real estate, there is nothing to prevent the bar of
Decree affirmed.
