Dugan v. Hollins

Bartol, J., delivered the opinion of this court. Before considering this case on the merits, it is necessary to dispose of a preliminary question, involving the appellant’s right to have the chancellor’s order, of the 26th of January 1854, reviewed on his appeal. It appears that the complainant, in his bill, asserted four items of claim. The chancellor, in his opinion filed with the above mentioned order, examined them all, and disallowing the first three, passed an order referring the case to the auditor to state an account in relation to the fourth. Before the account was taken, or any thing further done in the cause, the proceedings were removed, on the 7th day of March 1854, to the circuit court for Baltimore city, under the act of 1853, ch. 123; and the complainant, in that court, entered his appeal from the decree of January 1854, on the 26th day of May of that year. Further proceedings were then had, and the circuit court, on the 5th day of July 1855, passed a decree for the sale of certain property, to satisfy the fourth item of the complainant’s demand. The complainant appealed from that decree on the 29th of September 1855. The record was filed here on the 23rd of November 1855, within nine months from the date of the complainant’s last appeal; but after the lapse of that time from the 26th of May 1854, when the complainant’s first appeal was entered. The objections taken, on the part of the defendants below, to the complainant’s appeal are, 1st, that he had no right to appeal at all, from the chancellor’s decree, after the cause had passed to another tribunal; 2nd, that if the appeal was well taken, the record should have been transmitted within nine months from the entry of the appeal, the order appealed from being final in its character, as to the three rejected claims; and 3rd, that the court cannot, under the appeal of September 1855, review the proceedings as to the rejected claims. It is, doubtless, true, that generally an appeal must be entered in the court where the judgment or decree is passed. In — 75 — most cases it can be entered nowhere else. J3ut. here the question is, how far this general doctrine has been modified by the acts authorising the removal of causes from one jurisdiction to another. This court has said, in Brown vs. Gilmor, 8 Md. Rep., 322, that where a cause is removed, under the act of Assembly, the jurisdiction of the chancery court passes to the circuit court, as if no removal had taken place. It must be considered as a continuance of the samo cause. This is a fair interpretation of the acts, and of the design of the legislature in passing them. The act of 1826, ch. 200, gives the right of appeal; the legislature did not mean to take away that right, by authorising the removal of causes. The object was not to hinder, or delay, or restrict remedies, but to promote the ends of justice; the acts not reserving expressly, yet not taking away any right which suitors would have enjoyed, if the case had not been removed. If the construction were otherwise, the party obtaining the decree might, by causing the papers to be transmitted to another court, immediately after the decree, cut off the opposite party’s right of appeal altogether. Surely the law was not designed to produce such consequences, and a construction that may lead to this injustice cannot be adopted. The first ground of objection, on the part of the appellees, being insufficient, and the appeal of May 1854 being in time, we are to inquire, secondly, how the filing of the record here, after the expiration of nine months, affects the question. And this point, we think, must be ruled against the appellees, upon the authority of Hannon vs. Robey, 9th Gill, 440, it not appearing that the appellant is in default. The propriety of the decree of January 1854 being properly before us, on the appellant’s first appeal, and there being no question as to the other, it is unnecessary to decide whether that decree is such a one as, under the acts of Assembly, could be reviewed upon the complainant’s appeal of September 1855. We proceed, therefore, to consider the questions presented by the record, upon the pleadings and proofs, under the appeals of both complainants and respondents. The bill filed in this cause, by Frederick J. Dugan, the ap — 76 — peilant, seeks to recover certain sums of money alleged to be due to him in the two-fold character of legatee of Cumberland Dugan, and as creditor^ by subrogation to the rights of John S. Gittings, who had recovered a decree for the amount of a simple contract debt due him from the testator; the complainant having paid the balance due on said decree, and taken an assignment thereof, on the 18th day of February 1847. Four distinct claims are presented by the complainant: 1st. As legatee of the sum of $13,750, chargeable on the bank stock and other stock of the testator, under the 14th clause of the will, with interest thereon. 2nd. As representative of Hammond Dugan, deceased, for one-third of legacy of the same amount given to him by the same clause of the will; said Hammond having devised all his estate and property to his mother, Margaret Dugan, and she having conveyed the same, by deed dated the 25lh day of March 1841, to the complainant and his two sisters, Rebecca and Cordelia M. Hollins, in equal proportions. 3rd. For one-fourth in his own right, and one-third of one-fourth, under Hammond Dugan, of payments made by the testator, as security of Robert and John S. Hollins, under the 15th clause of the will. 4th. For two-thirds of the sum of $9772.31, with interest from the 18th of February 1847, being the amount paid by complainant on the decree in favor of John S. Gittings and others, as admitted in statement of facts filed the 8th of June 1853. We shall first dispose of the third item of the complainant’s claim, by simply remarking that we concur with the late chancellor, in the construction of the 15th clause of the will, on which it is founded; and, for the reasons expressed in his opinion of the 26th of January 1854, we think that item of claim must be disallowed. To determine the equitable rights of the complainant upon the other items of his claim, is somewhat more difficult. We have given them our most careful and anxious consideration, and believe that the difficulty in arriving at clear and satisfactory conclusions on the questions involved, arises from the com — 77 — plex relations which the parties bear to each other, and to the several funds sought to be charged, rather than from any uncertainty in the legal principles on which they depend. These are plain and well established, and a brief statement of them at the outset will aid us in arriving at the equitable rules which govern the case. 1st. It is clear that the legacies given to the complainant and Hammond, by the 14th clause of the will, are not to be treated as mere general pecuniary legacies. They are what are called demonstrative legacies, not strictly specific, but in the nature of specific legacies; that is to say, to the extent of the value of the fund or property on which they are chargeable, (when that does not exceed the amount of the legacy,) they are to be treated, in some respects, as specific; liable to abate with specific legacies in the payment of debts, and entitled to contribution from them, if the fund demonstrated has been so applied, to the exemption of specific legacies. See 1 Roper on Legacies, 224, 237, 363, 364, (edition of 1848,) 2 Wms. on Ex'crs., 995, 1174, (edition of 1849,) and the cases cited by those authors. The conclusion from these authorities is, that as the stock on which these demonstrative legacies were charged, has been applied to the payment of debts, the legatees are entitled to a ratable contribution from all the specific legacies which have not been so applied. 2nd. This court considers the law as settled in Maryland, that if there be sufficient personalty for the payment of debts, a simple contract creditor cannot resort to the realty for payment, when the realty is devised, and is not charged with the debts. 3rd. If a specific legacy be taken for the payment of a simple contract debt, while the legatee would be entitled to contribution from other specific legacies, he cannot charge with contribution the real estate which is devised. These last two rules were expressly recognized and asserted by the Court of Appeals, in the case of Chase vs. Lockerman, 11 G. & J., 185, decided sixteen years ago. That case has not been impugned, as was argued at the bar, by the decision in Alexander vs. Worthington, 5 Md. Rep., 471; and has so — 78 — long been considered as established law in Maryland, that this court is not disposed to disregard its authority. Now let us apply these rules to- the case before us. It is obvious that inasmuch as the debts, to the payment of which the demonstrative legacies have been applied, were simple contract debts, the complainant is not entitled to subject any of the real estate of Cumberland Dugan to contribution for the payment of any claim which may be due him as legatee. Nor is any portion of said real estate (the same having all been devised) liable for any claim of the complainant as creditor, until after the whole personal estate, including the legacies, shall have been exhausted. If, upon a proper account being taken, it shall appear that the whole personal estate of Cumberland Dugan, specifically bequeathed, and the bank and other stocks, with the dividends thereon, charged with the demonstrative legacies, be more than sufficient to pay all the balance of the debts due and owing by him, after first applying to such payment the general assets, then the complainant will be entitled to ratable contribution from the specific legacies on his one-half of said demonstrative legacy, and on the one-third of said Hammond Dugan’s half of the same legacy, estimating said demonstrative legacy not at the sum named in the will, but at the amount of the actual value of the stock pledged for its payment, and the dividends thereon, and in this case such value is the price for which the stock was actually sold. In estimating such contribution, the same must be charged ratably on each parcel of personal property specifically bequeathed, including the lot of ground on Water street, given to the complainant himself, and the specific legacies given to Margaret Dugan, the mother, except that if it shall appear that the whole assets exceed the whole amount of debts due by the estate, and the expenses of administration, the one-third of such excess would belong absolutely to the widow, as purchaser. See 10 G. & J., 113. And in charging such contribution on the personalty specifically given to her, such sum so ascertained as belonging to her absolutely, must first be deducted from the amount of her — 79 — specific legacies, and (.he residue thereof, only, is liable to contribution. And inasmuch as all the specific legacies of Margaret Dugan, including the Ferry Point lot, have passed to the complainant and his two sisters, Rebecca and Cordelia, in equal proportions, and in the same proportions they represent the said Hammond’s interest in the demonstrative legacy, the several contributions chargeable on said specific legacies must be apportioned between them in like proportions, and the value of the two lots, above mentioned, is to be determined by their appraisement in the inventory. By tire application of these rules tire rights of the complainant, in respect to the first and second items of his claim, may be ascertained. These principles are necessary to be decided, in order to adjust the accounts between the parties, although it may appear that the complainant has already received, as specific legatee, more than he is entitled to, in that character, under the will. The principles already stated, will also indicate the mode in which the complainant’s claim as creditor, under the assignment from Gittings, is to he ascertained and adjusted. The amount paid by him to Gittings was $9772.31, and that sum, with interest from the 18th of February 1847, constitutes the basis of the fourth item of complainant’s claim. This court concurs in the opinion of the judge of the circuit court, that the whole balance of the personal estate of Cumberland Dugan, remaining unadministered, is first applicable to the payment of this debt. This balance consists of two items: 1st. The sum remaining in the hands of the administrators de bonis non, which is admitted to be $260.92. For that sum they are liable to the complainant in this suit, with interest thereon, from the 10th day of January 1849; their accounts showing that the same has been in their hands since that time, and that no interest has been charged thereon. 2nd. The sum for which Margaret Dugan, the executrix, is chargeable for devastavit; and it is necessary to determine the amount of such devastavit. It has been contended, in the argument, that she is justly — 80 — chargeable with the loss which occurred by reason of the depreciation in the value of the Franklin bank stock, on the ground that she was guilty of laches and neglect in not selling the same, according to the directions of the will. We do not concur in that view; the record shows that letters ■ testamentary were granted to her on the 3rd day of December 1836; that on the 3rd day of January 1837, the suit of John S. Gittings and others was instituted, claiming large sums of money from the estate. There was certainly no breach of duty by the executrix in retaining the stock unsold, to await the determination of that suit. It does not appear that the stock was considered an unsafe investment; large dividends accrued and were received thereon, and there is no evidence in the cause of any ground for apprehension of loss, until the sudden failure of the bank, which occurred as early as January 1841, before the final determination of the suit of Gittings. Besides, the respondents, who were interested as residuary devisees and legatees, had a right, at any time, equally with the complainant, to compel a sale of the stock, by instituting proper proceedings for that purpose. All the parties interested, however, stood by without taking any action to enforce a sale. For these reasons this court considers that there was no devastavit by the executrix in her omission to sell the bank stock, and the accidental depreciation in its value. We are of opinion that the devastavit chargeable upon the executrix, is to be measured by the amount of the judgment recovered against her and her sureties, amounting to the sum of $4710.21, with interest from the 4th of June 1846. We are also of opinion that the said judgment for devastavit cannot properly be charged, for any part of it, against the sureties of said executrix. It is very evident, from the proofs in the cause, that her individual estate was ample to pay the amount of the devastavit, and as it does not appear that any part of it was collected by the administrators de bonis non, and as all her property, which was chargeable therefor, passed to the complainant and his two sisters, Rebecca and Cordelia, in — 81 — equal proportions, the said devastavit ought to be charged, in equal proportions, to the said complainant and his said two sisters, to the exoneration of the sureties. One-third, therefore, of the said judgment for devastavit is to be deducted from the said claim of the complainant. After 'applying to the payment of the said Gittings’ debt the said balance in the bands of the administrators de bonis non, and the one-third of the amount of said judgment for devastavit, the balance of said debt is chargeable on the personal estate, only, of Cumberland Dugan, deceased; and for its payment the several legacies must contribute their just and ratable proportions. Without reversing or affirming on either of the appeals, we remand the cause for further proceedings, under the act of 1832, ch. 302. Cause remanded. Note.' — 'the Reporter has been requested, by the Judges who decided this case, to state, that the court is not to be understood as intimating any opinion on the question, whether if a demonstrative legacy be taken for the payment of specialty debts, the legatee would be entitled to claim contribution from the realty, in the same manner as a specific legatee ? This question does not arise in this case, and the court expresses no opinion thereon.