65 Md. 278 | Md. | 1886
delivered the opinion of the Court.
In this case the suit is upon an administration bond. The récord is meagre and in some respects defective, but
Margaret Reister, of Baltimore County, died in 1877, intestate, and letters of administration upon her personal estate were granted to William L. Shriver and Charles E. Lanver, who gave bond with Charlotte Dwyer and Samuel A. Lanver as sureties thereon. The intestate was unmarried, and left neither children nor descendants, nor father nor mother surviving her, and the distributees of her estate were, therefore, her surviving brothers and sisters and the children or descendants of deceased brothers and .sisters. Code, Art. 93, sec. 128. In her life-time the intestate had four sisters and two brothers, Jesse and James. Two of her sisters died when she was living, and left no children or descendants, while the other two sisters survived her, and to these two surviving sisters the administrators distributed the personal estate as sole distributees thereof.
The plaintiff in this action is Jesse C. Reister, who claims to be a legitimate son of Jesse Reister, one of the brothers of the intestate, and therefore her nephew. The proof adduced in support of this relationship is to the effect, that the two brothers, Jesse and James, left their home in Baltimore County, between the years 1833 and 1837, and removed to one of the Western States; that Jesse was married in Cincinnati in January, 1839, lived with his wife for about ten years until his death, and had several children, all of whom .died without issue except the plaintiff; that the said Jesse died in July, 1849, of cholera, and that the plaintiff was born in February, 1850, and was therefore a posthumous child; that though there had been some correspondence after he left this State and after his marriage, between the said Jesse and his wife, and one of his sisters in Maryland, yet shortly after, or about the time of his death, such correspondence ceased, and there was no intercourse of any sort between the families until
The suit was instituted in November, 1884, less than twelve years after the date of the bond. The plea of limitations could not, therefore, be interposed, and upon the assumption that the plaintiff is the legitimate son of a deceased brother of the intestate, or that a jury would so find from the evidence above stated, we are clearly of opinion he can maintain the suit and recover, unless one of the two defences relied on by the administrators as a bar to the action is valid, and these we must now consider.
1st. The administrators contend they are protected by the distribution made in the Orphans’ Court. The only proof on this subject, apart from the distribution account itself, is to the effect that the acting administrator sought and followed the instructions of the Orphans’ Court, acted under its orders, and did all he thought he could or knew how to do, to distribute the estate properly; that he married a connection of the family, but knew nothing of James or Jesse Reister, except that he heard they had died in the west, and that he never heard of the plaintiff until he appeared in Reisterstown in August, 1884. But there'is nothing to show that the distribution was made either under sec. 138 or 139, or 143 of Art ’. 93 of the Code. The administrators do not appear to have proceeded under either of these provisions, and the law is thoroughly well settled, that unless one of these sections is followed, no ex ■parte distribution in the Orphans’ Court will afford protection to the administration against the claim of a party excluded therefrom. Conner vs. Ogle, 4 Md. Ch. Dec., 450; Hanson vs. Worthington, et al., 12 Md., 441; Scott vs. Fox, 14 Md., 396 ; Donaldson’s Ex’rs vs. Raborg, Adm’x, 28 Md., 56; Wilson vs. McCarty, 55
2nd. The next defence is founded upon section 134, which, while it allows posthumous children of an intestate to take in the same manner as if they had been born before the decease of the intestate, declares “.that no other posthumous relation shall be considered as entitled to distribution in his or her own right.” The contention is that as the plaintiff is a posthumous child, because born after the death of his father, he is therefore a “posthumous relation ” to his aunt within the meaning of this section, though he was in fact born more than twenty-five years before her death. But we do not so construe this section. What the section means is simply this, that children of an intestate born after his death shall take in the same manner as if born before his death, but no other relation born after his death shall be entitled to take as distributee in his own right. The same idea is more clearly and accurately expressed in the corresponding provision in the Inheritance Law (Code, Art. 41, sec. 25), which declares, that “‘no right in the inheritance shall accrue to or vest in any person other than children of the intestate, and their descendants, unless such person is in being, and capable
It follows. from what we have thus said, that the Court below was right in its rulings upon all the defendant’s prayers except the third, and also in granting the plaintiff’s first and fourth prayers. It has been objected to the plaintiff’s first prayer, that it assumes the fact that the intestate died leaving no father. It certainly does assume this fact, but the exception taken to it in the Court below is not sufficient to raise that question in this Court. A mere general exception that a prayer “ assumes certain facts,” without pointing out what the facts so assumed are, ■does not gratify the fourth Rule Respecting Appeals. If the fact so assumed had been pointed out in this case, the prayer could have been easily corrected in that particular in the trial Court. Nor was there any error in sustaining the demurrers to the defendant’s first, second and fourth pleas. The first and second amount simply to pleas of general performance, and these are bad where the suit is on a bond with collateral conditions, and the breaches are ■assigned in the declaration. The fourth is also plainly defective, because the fact that the administrators paid away “ a large amount ” of the assets in discharge of the debts of the decedent is no bar to the action. If they had so paid away “ all the assets,”• they would have had -a good defence, and this they set up in their third plea, to which there was a replication and' issue, but they offered no propf to sustain it. The objection to the return of the ■commission under which the testimony in Cincinnati was
This leaves for consideration the question presented by the defendants’ third and the plaintiff’s second prayer. The plaintiff contends he is entitled to recover one-third of the estate unless the other side show that James, the other brother of the intestate, is living, or has died leaving children or descendants surviving him, while the defendants insist that in order to entitle him to a third, the onus is upon the plaintiff to show that James died before the intestate, leaving no children or descendants, and if he fails to show this he can recover only one-fourth. In our opinion, the position taken by the defendants is correct. This is a suit upon the administration bond and the plaintiff seeks to recover against the obligors a specific share of the estate which he contends the administrators, have wrongfully distributed to other parties. Clearly the onus is upon him to make out his title to the share he thus claims. The distribution account is prima facie evidence against the defendants as to the amount thereby distributed, but we do not see how the recital that the intestate left her two-surviving sisters “as distributees thereof,” can be invoked to aid the plaintiff’s case. He was bound to show that the distribution was wrong in excluding him, and he is equally bound to show that it was so far wrong as to exclude him from receiving the particular share of the estate which he claims. Besides, upon the proof which
But there is also another fatal defect in the plaintiff’s second prayer. It asserts that he is entitled to recover one-third “of the amount” distributed by the distribution account. That account shows that $1300 of this amount consists of the appraised value of permanent leasehold property in the City of Baltimore. There is nothing to show that this property was ever sold by the administrators and converted into money. On the contrary, the account plainly shows a distribution of it in specie. The distribution is to each of the distributees of “an undivided one-half interest in a lot of ground and improvements on the west side of Calhoun street, 62 feet south from Presstman street in the City of Baltimore, $650.” It is true, that the title to such leasehold property vests in the administrator and must be administered by him in the Orphans’ Court. But there is a broad distinction between this species of property and horses, stock, farming implements and other chattels personal or movable. Leasehold interests held under perpetualleases, such as have prevailed in the City of Baltimore, are fixed and permanent in their character, are subject to liens of judgments in the same manner as real estate, and like real estate may be sued for and recovered in an action of ejectment. There- is nothing to prevent the plaintiff from now recovering his interest in this property in such an action. The erroneous distribution in the Orphans’ Court has neither divested his title thereto, nor .placed any barrier in the way of such recovery, that he would not have had to encounter if no such distribution had been made. In fact we are unable to perceive, how, with respect to this property, he has been in any way injuriously affected by the distribution of which he now complains. The property itself has not thereby been removed, changed or disturbed, and so far as his title to it is concerned, it remains in the same condition as it was at
Judgment reversed, and
new trial awarded.