8 Gill 46 | Md. | 1849
delivered the opinion of this court.
In the distribution, by the orphans court of Dorchester county, of the personal estate of the late James Pattison, various questions arose, and the decision of them by the court, gave rise to these several appeals. Of them it is now designed to dispose.
There is proof in the case, that the deceased, sometime before his death, furnished his son-in-law (Stewart,) with $2,000. Was this a loan? Or, was it an advancement? Or, was it money given without a view to a portion or settlement? If the latter, the act of 1798, ch. 101, sub. ch. 11, sec. 6, says it shall not be deemed advancement.
There is much testimony in the case relative to this money. It is deemed unnecessary to examine it with a view to show how much of it is admissible, and the weight to which each portion of it is entitled, whether taken by itself, or in connection with the residue of the testimony. This being a proceeding in the orphans court, exceptions to the testimony deemed to be inadmissible, are not required. A judge must have a wonderful degree of confidence in his own judgment, and in
This evidently was not a transaction between a money lender, seeking a profitable, investment of his money, and one anxious to borrow. There is satisfactory proof that Stewart was to be furnished with this money, not to be expended as he pleased, but because his father-in-law felt an abiding conviction that if he furnished this money, one object which he anxiously desired to accomplish, the society, perhaps the tender cares and attention of a favorite daughter, in his declining years, would be accomplished. Who can examine this testimony and say, that
It would be difficult, too, to infer, from the proof, that this was intended as an advancement, that this is to be regarded as money given to a child, with a view to a portion or settlement. This inquiry, however, would only be necessary if there had been an actual or total intestacy. But see the authorities collected in 4th Dessassure 291, 3 Ba. Abt., title Executors and Administrators (edition in 1813,) Letter K., p. 77, and also Deputy Commissary's Guide, p. 117.
To several of his children the testator gave legacies, adding thereto the words, “ and no more of my estate.” Are those children to be excluded from a share of the fund now to be distributed? We think not. Any portion of his personal estate of which the testator himself does not dispose, is to be distributed according to law; and it is nowhere provided in the law, that personal estate of an intestate is to be distributed among
The order of the orphans court excludes Jeremiah L. Pattison from any share of the fund to be distributed, and this, because, in the opinion of the court, a conveyance of a tract of land to him, by the deceased, was an advancement to him, and greater in value than a share. In this there is error. The fund in the hands of the executors, and to be distributed by the court, consists entirely of personal estate. With the real estate of the deceased, when and how the deceased has disposed of that estate to his children, the orphans court has no concern. As one of the children of the deceased, he claims a child’s portion of the personal estate, and even if there had been a total intestacy, it is by no law made the duty of the orphans court to ascertain what portion of the real estate he received. In a different form, and in a different forum, controversies in regard to the real estate, must be settled.
This court is of opinion that Ann Elizabeth and Margaret W. Pattison are not entitled, either of them, to the sum of fifteen hundred dollars, to be paid out of the personal assets now to be distributed. If payable at all, it must be claimed of the devisee, who, by the will, is required to pay it. Accord
In the appeal by Stewart and wife, the order of the court is reversed, and also that portion of it from which Jeremiah L. Pattison appeals. In the appeal by Steioart and wife, Birleley and wife, and others, order affirmed; and in the appeal by Fooks and wife, and Miss Pattison, the order is affirmed. The costs in both courts to be paid out of the assets of the estate.
ORDER REVERSED IN PART, AND
AFFIRMED IN PART.