Sparks v. Weedon

Goldsborough, J., delivered the opinion of this Court: The only important question for our consideration in this case, is, are the bequests made to the appellee by the last will and testament of Elizabeth Miller, general or specific legacies ? It is conceded that the bank stock of the Farmers Bank of Maryland, is a specific legacy. In our opinion the bills obligatory of James Sands and Henry H. Bush, and the large chest and contents mentioned in the third clause of the will, are each of them, equally specific. As to the bills obligatory, we find in 1 Roper on Legacies, 277, 3d Edition, the following emphatic language: “That when the- gift of the legacy is so connected with.the debt or security as that the gift of the legacy and of the debt or security are the same, the intention to give nothing more than the identical debt or money due on the security is apparent and consequently the legacy will be specific.” See also 2 Brown’s C. C., 109. 2 Vesey, Senr., 623. After the appellants had applied all the assets of the estate (except the legacies mentioned in the will) to the payment of debts, expenses, &c., there remained a deficiency of $1593.66 to be paid by an abatement of the specific legacies pari passu, including the legacies of James Iglehart & [165] Co’s note and the silver plate bequeathed to Mrs. Glover which were equally specific. The personal-estate is presumed to be fully administered at the expiration of thirteen months from the date of administration, and interest should be calculated from that period on all the legacies. Whatever might then be their relative value, that relative value would be maintained at any future period which might be selected to state an account. Upon this basis, we think the auditor’s account A R, No, 2, was properly stated. Not as apprehended by the appellants, to charge them with the interest thus ascertained, but to fix the respective value of the legacies to Mrs. Glover and the appellee, and thereby show what amount they would relatively contribute to meet the deficiency. It appears from this account that the legacies of the appellee had to contribute the sum of §1139.99. This amount was appropriated by the appellants, by the application of Bush’s note, §600, the bank dividends then received, $509.49, interest received on Sands’ note, §120, amounting in the aggregate to §1229.49, and exceeding the appellee’s proportion of the deficiency by §92.50. The appellants holding the two-fold relation of executors and trustees, did, by operation of law, hold the appellee’s property in the latter capacity after their executorship ceased; and are responsible for the bank stock and all dividends declared thereon, except those applied as above, also for Sands’ note and interest with the same exception, and also the above excess of §92.50. The appellants are thus chargeable with these items or hold the same to be delivered over to any other trustee who may be appointed upon their resignation of the trust. Though there is error in the decree of the Circuit Court in directing certain portions of the fund to be paid over to William S. Weedon, the father and next friend of the appellee, when, by the will, the appellants, as trustees, had control of the entire fund, we do not deem this error [166] of sufficient importance to warrant the reversal of the decree. (Decided Feby. 26th, 1864.) In our opinion the appellants had no sufficient justification for prosecuting this appeal, and therefore the appellee is entitled to her costs in this Court. Without affirming or reversing the decree of the Circuit Court, we shall remand the cause to that Court, that a decree may be passed in conformity with the views expressed by us in this opinion. Cause remanded for further proceedings.