65 Md. 69 | Md. | 1886
delivered the opinion of the Court.
The testator John Eschbach directed his executors to sell so much of his real or personal property as might be necessary for the payment of his debts.
The rest and residue of his estate, he devised to his sons Leo and John, in trust. — First, to ascertain the amounts advanced, to his several sons, and daughters and sons-in-law, the said amounts so ascertained to be added to his estate, and the entire estate to be then divided into ten equal parts, the number of his children. This division he directed to be made by three persons to be appointed by a Court, having jurisdiction over trust estates. To each child he gave one share, the said share to be charged however with all advances made to such child. The language of the will being “each of my sons to have one share, and to be charged with advances made or to be made to him, and so with the shares of the daughters.”
He gave to his sons Leo and John, their shares absolutely, and to his other children, he gave a life estate in the shares thus devised to them, with remainders to their children. In the quantity of estate no distinction was made among the children, each was to have the one-tenth.
Leo and John having declined to act as executors and trustees, the appellees were appointed administrators with the will annexed, and trustees in their place.
Prom this judgment an appeal was entered, with the full understanding however among the children of the testator that the appeal should not delay the division of the estate, but that a sufficient sum should be impounded to satisfy the judgment in the event of its affirmance.
In the meantime sundry creditors of John, one of the sons of the testator,, have recovered judgments against him, and the question in this appeal, is whether the administrators and trustees have the right as against such judgment creditors to impound so much of John’s share, as may be necessary to pay the judgment recovered against the administrators in the United States Circuit Court.
It is conceded that if it was purely a question of the distribution of personal estate, the administrators would have the right to set off this judgment against John’s distributive share, but it is argued that no such right exists in the division and- partition of the real estate.
' Whether a Court 'of equity would have the right in the exercise of its equitable powers, to impound so much of John’s share as may be necessary to satisfy this judgment as against John’s judgment creditors, is a question not necessary to be decided in this case. We are now dealing with the division of an estate to be made in a Court of equity, in the manner and in accordance with the terms prescribed by the testator himself. It is plain as we have said, the testator meant equality among ’his children. ■ His liability as surety on John’s bond, was a liability existing at.the time of his death, and taking the whole will together it is clear, we think, he meant to charge each child with all amounts advanced by him, or for which he might in any manner be liable. Any other construe
The judgment creditors of John can stand in no better position than he himself stood; their rights are derived through him.
Decree affirmed.
