Cecil v. Rose

Bartol, J., delivered the opinion of this court. The record shows that Samuel Owens, Sen., died in 1821, leaving a will duly executed, by which he bequeathed negro Rose, one of the petitioners, to his wife, Mercy Owens, whom [101] he appointed his executrix. Mercy Owens (the legatee) died in 1831, leaving a will, by which she bequeathed the same negro, Rose, to her daughter, T. Macbee, for seven years, (after the death of the testatrix,) and after the expiration of which term of servitude, she willed Rose “to be liberated and forever set free,” and appointed her son, James Owens, her executor. The other petitioners arc children of Rose, all born after the expiration of the said term of seven years. • After the death of Mercy Owens, Rose went into the possession of T. Macbee, the legatee, who, after holding her in possession for two years, sold and conveyed her to James Clarke, to serve for five years from the 28th day of May 1833. Rose went into the possession of Clarke, and so continued for five years. At the expiration of which time she went at large and acted as a free woman, until she was taken possession of by the appellant, in 1857, after he had obtained letters of administration on the estates of Samuel Owens, Mercy Owens, and Mercy Owens, Jun., (the daughter of Samuel and Mercy Owens.) These letters of administration were granted to the appellant, one of them on the 13th day of July 1857, and the other two on the 8th day of September 1857. The petition for freedom was filed by the appellees on the 20th day of January 1860. At the trial of the cause, three bills of exception were taken to the rulings of the circuit court. The first two involve questions of evidence, and the third presents the questions arising on the prayers offered by the appellant, and rejected by the court, in disposing of this appeal, the third exception will first be considered. The first and third prayers embody the proposition, that it was incompetent for Mercy Owens, Sen., effectually to manumit negro Rose, by her will, unless there had previously been an administration of the estate of Samuel Owens, Sen.; and that the petitioners are not entitled to freedom unless there had been administration on the estates of Samuel Owens, Sen., and Mercy Owens, Sen., before letters granted to the appellant. It is unquestionably true that legatees and next of kin must [102] derive their title through the executor or administrator, who alone represents the deceased, and in whom the law vests the personal estate; and in order to vest in the legatees or next of kin a complete title, an administration is necessary. Neale vs. Hagthrop, 3 Bland. 551, 564. Alexander vs. Stewart, 8 G. & J., 246. Snively vs. Beavans, 1 Md. Rep., 221. But the question here is, what were the rights of Mercy Owens, derived under the will of Samuel Owens, Sen.? She was the legatee of negro Rose, and the sole executrix of the will. By the English law, an executor might do many things in that character, even before probate; he might assent to and •pay legacies, and where he is himself the legatee, his own assent to the legacy, either actual or implied, would vest the complete title in him. Por cases illustrating this doctrine, see 1 Williams’ Excrs., part 1, book 4, ch. 1, sec. 2. 1 Roper on Legacies, 845, (Ed. of 1849.) Under our testamentary system, the powers and rights of an executor have been materially altered and abridged. Although he derives his appointment under the will, yet, in order to clothe him with full power and authority as executor, and to qualify him to act, he is required to give bond and take the oath prescribed by law. Not having qualified as executrix, Mercy Owens could not, in that character, dispose of the property of the testator. But, as legatee, she had a right to negro Rose, which vested upon the death of the testator; her title was derived from the will, and although, to perfect it, an administration was necessary, yet; before administration, she had an inchoate title, which it was competent for her to assign or dispose of by her will. When administration is afterwards had upon the estate, her title, or the title of those claiming under her, becomes complete; it relates back to the time of the testator’s death, and may be asserted against the defendant, who is administrator, with the will annexed, of Samuel Owens, in the same manner as if such administration had been granted in the life time of Mercy Owens. In 1 Roper on Legacies, 844, it is said: “Although, as we [103] have seen, the assent of the executor be necessary to complete the title of the legatee, yet, before such assent, the legatee takes an inchoate right in the subject, which is transmissible to his personal representatives, in the event of no disposition by will-” See, also, 2 Wms. Excrs., 1176, 1183. it follows, from these views, that it was not necessary for the petitioners to prove that there had been administration of the estate of Samuel Owens, in the life time of Mercy Owens, and that the administrations granted to the defendant were sufficient to entitle the petitioners to maintain the suit, if in other respects they were entitled, and that the first and third prayers of the defendant were properly refused. In our opinion, the second prayer was also properly refused, because there was no evidence of any debts due and owing by the estate of Mercy Owens, deceased. A question was raised, in argument, as to where the onus of proof rests, in a case like this, with regard to the amount, of debts and the sufficiency of assets. On this point the Court of Appeals, in Cornish vs. Willson, 6 Gill, 335, refrained from expressing any opinion; nor has it ever been directly decided in Maryland. But in the case of Wilson vs. Barnet, 8 G. & J., 165, the court said: “The proof of an insufficiency of assets, if such were the fact, was peculiarly accessible to the administrator; he had possession or title to all the effects of the deceased, and might be supposed, after such a lapse of time, to know ail the debts of the deceased. This he should have established by the ordinary media of proof.” This is a strong intimation of the opinion that the burden of proof is on the administrator, not on the petitioner; and, after a full consideration of the subject, we think that is the most reasonable and just rule of evidence. There is no reason why a negro claiming freedom under a will, should be placed in any worse position, in this respect, than any other specific legatee. In all such cases, if the rights of creditors are set up to defeat the claim of the legatee, the burden is-upon the administrator to show the insufficiency of assets. And as the defendant in this case failed to produce any proof [104] of indebtedness by Mercy Owens, deceased, the second prayer was properly refused. (Decided March 26th, 1861.) We concur with the court below, in the propriety of rejecting the evidence offered in the first and second bills of exceptions. The recitals in the deed of the 20th of February 1834, were mere declarations of third parties, under whom the petitioners do not claim, and by which they are not bound, and we think that neither the deeds nor the account presented in the orphans court, were admissible for the purpose of showing a debt due by Samuel Owens, Sen., deceased. The account had not the prima facia proof required by the Act of Assembly. Even according to the theory of the appellant, the alleged debt from Samuel Owens, Sen., was not due to the claimants jointly, but in severalty, and could not be verified by the oath of three of them only; nor was. the affidavit according to the requirements of the Act of Assembly. But, apart from these objections, it is manifest from the appellants own showing, that the transactions described in the deeds, and the other evidence, could not establish any legal demand in favor of the claimants against the estate of Samuel Owens, Sen. There was no privity between them. If Samuel Owens, Sen., as alleged, sold land to Samuel Owens, Jr., to which he had no title, and received the money therefor, he might be bound to repay the money to the purchaser, but could not thereby become the legal debtor of the owner of the land. ■ These alleged creditors claim under Mercy Owens, Jr., not under Samuel Owens, Jr., as assignee or otherwise. And for these reasons we think the evidence was properly excluded. Judgment affirmed.