11 Md. 424 | Md. | 1857
delivered the opinion of this court.
This is a case of issues sent from the orphans court to the circuit court for Prince George’s county. The record shows that the appellant filed his petition in the orphans court, alleging that lie was the brother of his intestate, who died possessed of certain negroes, and a sealed note for $1000, executed in her favor by one Washington J. Beall, and that the appellee hath concealed, and doth conceal,” three negroes, viz.,
The 1st issue propounded the inquiry, whether the appellee concealed the negroes ? The 2nd, whether she has concealed the sealed note of $1000? The 3rd, whether the intestate did give to the appellee the negro girl, Louisa, as a donatio mortis causal The 4th, whether the intestate did give to the appellee the negro girls, Mana and Emeiine, as a donatio mortis causal And the 5th, whether the intestate did give to the appellee the sealed note for $1000 as a donatio mortis causa ?
At the trial, it was proven that Miss Deborah Waring was the companion and house-keeper of Mrs. Martha Beall, at whose house she died, and that she was possessed of the property mentioned in the issues. It was also shown, that Miss Waring had great attachment to her sister, Mrs. Edmonds, the appellee, and that the latter had been attentive on more occasions than one, when Miss Waring was sick, whilst her other relatives failed altogether to visit her. On this point, Miss Elizabetli Johns testifies, “that she had not known any of the other brothers and sisters, or relations of Miss Waring, ever to visit her during her life; she saw her brother (the present plaintiff) at her funeral. That she had often heard Miss D. Waring speak of her sister, Mrs. Edmonds, affectionately; said she had been a mother to her, and she was almost a stranger to her other relations; and at her death she wished her sister to have all her property. That in her last illness,
The attending physician, Dr. Sheehy, proved that he was with her during her last illness; that she was perfectly conscious of her situation; that about a week or ten days before her death, he make known to her her approaching end, and suggested to her to make disposition of her property by will, to which she answered, “You know, Doctor, I cannot use my hand; it is paralyzed, I could not write my name.” She then asked him if she could not give her sister, Mrs. Rebecca Edmonds, her property, in the presence of witnesses? 1 answered, yes. She then said, I have given my sister (Mrs,
Whatever doubt there may be in regard to the law of the case, there certainly can be none, in any just mind, as to what was the intention of Miss Waring. If ever the wishes of a party were made manifest, they are in this case; that Mrs. Edmonds was the only person intended by her as the beneficiary of her bounty, we think no one can doubt. If, therefore, she be deprived of it, it must be owing to some stem principle of law which works great hardship in special cases for the sake of the general, public good. Is there any such principle?
So far as the negro Louisa is concerned, the proof is positive of not only a gift, but of actual delivery. The donee, the subject of the gift, and the donor being all in each others presence at the time of the transaction. If a negro be the subject of a gift, donatio mortis causa, it is impossible for us to perceive or imagine what defect there was in the transfer of the title to Louisa. We think, also, that the gift of the other slaves was completed by an effectual and perfect delivery. They were referred to specifically, and although not personally present, in addition to the donee, Mrs. Bell was, in whose care they were, and who was most solemnly charged to fulfil the wish of the donor, which she equally as solemnly promised to do, and faithfully fulfilled her undertaking. We regard her as the constituted agent and trustee to make the delivery; and we know of nothing to prevent the deceased from so constituting her. See Smith vs. Smith, 2 Strange, 935, and cases cited in note (a) to 7th Johnson, 28.
The only remaining question for our consideration is, whether a sealed bond is the subject of a gift donatio mortis causal If it be, then there is nothing to dispute about, for
To guard against all misapprehension, hereafter, we add, that we have very serious doubts whether the case be one over which the orphans court had jurisdiction, being a question of title and not of “concealment.”
Although the second and fourth instructions given by the court, are not as clear in their expression of the law as they should have been, yet we do not perceive the appellant has, in any sense, been prejudiced thereby, and we will not, therefore, reverse the judgment because of such want of precision. We consider the testimony abundantly establishes that the single bill and negroes became the property of the appellee by donatio mortis causa. The gift was perfect at the time it was made, they being in the possession of Mrs. Beall, who was constituted the agent for the delivery. Her acceptance of them, as the bailee of the appellee, was, in law, a sufficient delivery to the latter. The other rulings are unobjectionable.
By authority of the 3rd section of the act of 1832, ch. 208, this court allow and render costs against appellant, to be recovered and enforced, as in case of costs awarded on appeals from judgments at common law.
Judgment affirmed.