9 Gill 84 | Md. | 1850
delivered the opinion of this court.
• The testatrix in this case made her will in 1848, and after giving a few legacies to other persons, gave the rest and residue of her estate to certain of her nephews and nieces, “share and share alike.” After the making of her will, and before the year 1846, she made loans of sundry sums of money to Francis H. Smith, one of the appellants, and also one of her nephews and residuary legatees. She died in 1848, leaving her will in full force. In 1846, Francis II. Smith obtained the benefit of the insolvent laws of Maryland, and William A. Talbott was duly appointed his permanent trustee, and the only question we are called on to decide is, shall this trustee receive the full amount of the legacy to the insolvent, without any deduction therefrom of the loans made to him by the testatrix? But for the insolvent discharge of the legatee, there cannot be a doubt, either upon reason or authority, that the executor of the testatrix, upon the legatee’s insolvency in point of fact, would have had a right, in paying the legacy, to have set off therefrom .the loans to the legatee. In arriving at the intention
Let us see, then, what are the legislative provisions to which this extraordinary operation is sought to be attached. The first is, that in the fifth section of the act of 1805, chap. 110, which provides, “That any property which he, (the insolvent debtor,) shall hereafter acquire by gift, descent, or in his own right, by bequest, devise, or in any course of distribution, shall be liable to the payment of the said debts.” Under this act of Assembly it is conceded, as it must be, that no more of such devise or bequest could have been reached or obtained by the creditors of the insolvent, than would have been obtainable by them had no such insolvent discharge intervened. - That the devise or bequest vested not in the trustee, but remained in the insolvent debtor, subject to the race of diligence on the part of his creditors. To carry out the design of our insolvent system, which is equality of distribution of the effects of the insolvent amongst all his creditors, the second section of the act of 1834, chap. 293, was passed, which designed to accomplish nothing, but to put an end to this race of diligence amongst creditors, by transferring to the trustee such rights as would otherwise have remained in the insolvent, and thus secure an equal distribution of his property, (not the property of other persons,) amongst all his creditors. Sustain the doctrine contended for by the appellants, and although, in the event of a testator’s death, a legatee, insolvent in fact, would not be entitled to receive one farthing of the legacy bequeathed to him; yet, if he chance to have been discharged under our insolvent laws,
The decree of the orphans court is affirmed with costs, both in this court and in the court below.
DECREE AFFIRMED WITH COSTS.