Summary
. Appeal from the Circuit Court for Baltimore city.
Under the bill filed in this case, on the 12th of J une 1848, by Frederick J ames Dugan, against his co-devisees and legatees, in the will of Cumberland Dugan, deceased, the complainant claims from the defendants:
1st. The sum of $13,750, mentioned in the fourteenth clause of the will, with interest from the 3rd of December 1836, the date of the grant of administration upon the estate of the deceased.
2nd. The sum of $4583.33, being one-third of $13,750, given to Hammond Dugan, under the same clause of the will, with interest as above.
3rd. One-fourth in his own right, and one-third of one-fourth under Hammond Dugan, of the amount due the estate of the deceased, for payments made as security for Robert S. and John S. Hollins, mentioned in the fifteenth clause of the will.
4th. Two-thirds of the sum of $9772.31, with interest from the 18th of February 1847, being the amount paid by the complainant on the decree in favor of John S. Sittings and others.
And the complainant insists, that no further distribution of any part of the estate, real or personal, of which the testator died seized or possessed, shall be made until ho be first paid the several amounts so due him, and if the undistributed estate is not sufficient for such purpose, that he is entitled to a decree, against the defendants, Rebecca Hollins and her children, for one-half thereof, and against the children of Cordelia Margaret Hollins, for the other half. The complainant also contends, that for the purpose of establishing the equality provided for by the will, the parties are confined to the will itself, and have no right to look to the present value of the property specifically devised, or to any gift made subsequent to the will.
By this will, executed on the 5th of October 1832, tire testator ordered and directed, that his “funeral expenses and all his just debts shall be paid, out of whatever part of his estate his executrix and executors, or a majority of them, shall think proper” and then devised and bequeathed to his wife, Margaret Dugan, “in lieu of all claim of dower and thirds,” a farm called Duck Cove, a lease-hold lot, called the Ferry Point Lot, appraised in the inventory at $3000, all his slaves, and furniture, and plate, also a life-estate in four houses in Cumberland Row, in ten ground-rents from property on Dugan’s wharf, yielding about $900 per annum, in his dwelling house and lot, and in a stable and lot on Crowls alley. To his two daughters, Rebecca Hollins, wife of John Smith Hollins, and Cordelia Margaret Hollins, wife of Robert S. Hollins, he devised the Washington Cotton Factory, one moiety to each, and also to each a house and lot on Dugan street, worth $925, and a warehouse and lot on Dugan’s wharf worth $3525; which devises were made in trust, for the sole and separate use of his daughters, for life, with remainder to their children. To his son, Hammond, Dugan, he devised one-half the reversion in his dwelling house and lot and the stable and lot in Crowls alley; the reversion in one of the houses and lots in Cumberland Row, one-sixth of the reversion in four other houses and lots, a house and lot on Water ¡jtreet, another on Dugan street, and a warehouse and lot on Dugan’s wharf. To his son, Frederick James Dugan, he devised and bequeathed one-half the reversion in his dwelling house and lot, valued at $7725, one-half the reversion in the stable and lot, in Crowls alley, a lease-hold lot, called the Water Street Lot, appraised in the inventory at $3000 but valued at $2000, certain lots on Fells Point, valued at $12,823, a house and lot on Dugan street, valued at $925, a warehouse and lot on Dugan’s wharf, valued at $3525, the reversion in one of the houses and lots in Cumberland Row, valued at $7700, and one-sixth of the reversion in four other houses and lots. To the children of his son, Frederick J., he devised property worth $7500, a part of which, however, by the construction of the will has been adjudged to belong to the two sons of his daughters, to whom also he devised property worth $14,975, a portion of which, valued at $11,000, has been adjudged to belong to Gittings and others, by the decree already referred to. (The above valuations of the property were made by admissions in the cause.) The fourteenth and fifteenth clauses of the will are, as follows:
“Item X1Y. And whereas it is my wish and desire, that my four children, Hammond Dugan, Frederick James Dugan, Rebecca Hollins, and Cordelia Margaret Hollins, shall be placed by me as nearly as possible on an equality, in the division of my estate, under the present will, and under such conveyances, gifts, . Hob jins in my favor, and by me endorsed, amounting to about the sum of $10,000 more or less; and whereas my daughters, Rebecca and Cordelia Margaret, or either of them, may at this time hold a note or notes of mine, drawn in their favor and each of their favor; now my will and desire is, that the foregoing promissory notes, any or either of them, is to be no charge whatever on my estate, but if any claim whatever is made on my estate, in respect of said notes or either of them, so endorsed or drawn by me, then and in that case my said daughters, or the one making or occasioning such demand or charge, shall cease to receive and be entitled to receive any share or dividend from my estate, so devised to their use respectively, be wholly determined; and should it so happen that my estate should be made responsible for any sum whatever, on account of said notes endorsed or drawn by me, for my said daughters, or for either of their said husbands, then and in that case, I, order and direct, that whatever sum may be paid by my estate, on said account, shall be charged by my executrix and executors, against my said daughters, or against such one as may have occasioned any such charge on my estate.”
He then bequeathed fourteen shares of Baltimore and Ohio Rail Road stock to his children, grand-children and great-grand-children, and directed that all instalments on these shares, as they may be called for by the company, shall be paid by “his executrix and executors out of his estate.” He then directed “his executrix and executors to invest so much money, to be taken from his residuanj estate, anything in this will notwithstanding, as will produce $150 annually, and pay the same to his grand-son, John Merryman Smith, during life.”— The will then concludes, as follows:
“Lastly. All my lands in Baltimore county or elsewhere; all my bank, road, insurance, or other stocks, except my Baltimore and Ohio Rail Road stock; all my notes, bonds, mortgages, accounts, or other evidences of debt or claims belonging to me; also my wharf, commonly called “Dugan’s wharf,” extending from the south side of Dugan’s street and running north to Pratt street; also one-half of my said wharf at the head, on Pratt street, with all and singular my claims, rights and domands, for damages appertaining to the same; also the reversion of ten annual ground rents on Dugan’s wharf, of about $900 per annum, after the death'of my wife; also all the grounds out of which the said rents issue; also all the rest, residue, and remainder of my estate, real, personal and mixed, 1 give devise, and bequeath to my four children,” naming them, one-fourth “of the said entire residue,” in trust for each of his two daughters, in the same manner as the other property devised in trust for them, and the remaining half “of the said residue of my estate” to his two sons, to be equally divided between them.
The testator died on the 1st of November 1836, and the executors named in the will having renounced, letters testamentary were granted to the executrix, Margaret Dugan, who gave bond, as such, dated the 3rd of December 1836, with her two sons, Frederick 1. and Hammond Dugan, as her sureties, and continued such executrix until January 1846, when her letters were revoked and administration d. b. n., c. t. a. granted to John S. Hollins, and Rebecca his wife. It was admitted, that her sons, Frederick J. and Hammond, acted as agents of the executrix, and after the death of the latter the former acted as such agent, until the revocation of her letters, in the transaction of business generally connected with the administration of the estate.
The inventory and list of debts show an amount of personalty of about $60,000, including the Ferry Point and Water Street leasehold lots, appraised at $3000 each, and 949 shares of Franklin bank stock at $24.50 per share, making $23,250.50. Of this stock 292 shares were sold by the executrix, in September and November 1840 and June 1841; that sold in 1840 bringing $17, and that in 1841, $5.25 per share. Dividends were regularly declared and received on this stock up to January 1841, when it was admitted the bank failed, and that only the sum of $8739.75 has been realized to the estate from all this stock.
The executrix passed three accounts, the first on the 10th of August 1840, showing a balance due the estate of $44,557.51; the second on the 29th of March 1843, when the debts of the deceased, except the Gittings’ claim, were paid, and the losses on sales, up to that time, accounted for, showing a cash balance on hand of $6298.14, besides specific property, appraised in the inventory at $24,214.25, including the unsold shares of Franklin bank stock, and the two leasehold lots, above mentioned j the third on the 4th of June 1846, after the revocation of her letters, showing, after deducting commissions and specific bequests to the widow, of the Ferry Point Lot and other property bequeathed to her absolutely, and the Water Street Lot, bequeathed to the complainant and delivered over to him, a cash balance of $3420.40, and stocks appraised in the inventory at $16,214.25, including the Franklin bank stock.
The administrators d. b. n., c. t. a. returned an inventory on the 3rd of July 1846, showing that the personal estate of the testator then consisted of certain bank, road and insurance stocks, appraised at $5752.50, including the unsold shares of Franklin Bank stock, at $7.50 per share, making $4927.50. The accounts of these administrators show a balance due the estate of $260.92, as of the 10th of January 1849, after deducting a payment of $4500 on the Gittings’ claim, made on the 21st of August, 1846, and other allowances. These administrators also brought suit in September 1846, against the executrix, Margaret Dugan, and the complainant, as surety upon her bond, alleging, that she owed large sums of money to the estate, and, instead of paying the Gittings’ claim, had, with full notice thereof, appropriated to herself the Ferry Point Lot, already mentioned as bequeathed to her, and delivered over to the complainant the Water Street Lot, bequeathed to him, and otherwise wasted the assets of the estate. On this suit a judgment was entered, by agreement, on the 12th of June 1848, against the complainant and Margaret Dugan, for the sum of $4710.25, with interest from the 4th of June of 1846, this sum being the aggregate of the balance in the hands of the executrix, as admitted by her last administration account and other moneys received and not accounted for, but this ascertainment was made without prejudice to the right of the plaintiffs to advance thereafter a claim for any loss occasioned by the delay of the executrix in selling any part of the personal estate.
The Gi(tings’ claim, above mentioned, originated in a bill filed on the 3rd of January 1837, by John S. Gittings and others against the executrix -and devisees of Cumberland Dugan, claiming a conveyance of certain real estate, (being part of that which was devised by said Dugan’s will to the two sons of his two daughters,) and an account of rents and profits received from the same by said Dugan, in his life-time, and his executrix since his death. Upon this bill decrees~;were passed on the 24th of March 1841, and the 25th of March 1843, directing the conveyance prayed for and the payment of $10,870.81, with interest from the 10th of December 1841, on account of the claim for rents and profits. These decrees were, upon appeal, affirmed by the Court of Appeals, at its December term 1845, and the cause being remanded, subsequent proceedings were had therein to make the leasehold and personal property, bequeathed by Cumberland Dugan, and then in the possession of Frederick J. Dugan, the present complainant, responsible for the amount thereof; and pending such proceedings the said Frederick, on the 18th of- February 1847, paid the balance of the decree then remaining due, with costs, amounting to the sum of $9772.31, and had the same entered to his use.
Hammond Dugan died in 1841, leaving a will devising to his mother his entire property. His estate was settled up and his debts paid by a contribution from the complainant and his sisters. After the death of Hammond, his mother, Margaret Dugan, by two deeds dated the 25th and 26th of March 1841, conveyed all the property devised to her by Hammond, including the Duck Cove farm which she had previously conveyed to him and re-acquired under his will, and the Ferry Point lot bequeathed to her by her husband’s will, in trust to be divided amongst her three surviving children by commissioners named in the deeds. This partition was made, and being approved by the parties, was confirmed and perpetuated by a deed between them, dated the 1st of July 1844, by which the complainant granted, released and confirmed, to his sisters, the parts allotted to them respectively, and they did the same in reference to his part. By this partition the complainant had allotted to him the Ferry Point lot at a valuation of $2500.
Margaret Dugan was subsequently, on the 18th of June 1846, upon proceedings instituted for that purpose, in Baltimore county court, declared a lunatic, and the wife of the complainant appointed the committee of her person, and the son of Cordelia M. Hollins committee of her estate. After the bill in this case had been filed the said Margaret died, and her committee passed an account by which the sum of $13,438.72 was accounted for, leaving a balance of $706.61 in his hands, subject to the order of the court, which balance was divided amongst the complainant and the other representatives of the said Margaret, without an administration upon her estate; and the furniture on hand at her death was likewise specifically divided in the same way. The slaves given to her by her husband’s will, she had manumitted in her life time with the consent of the complainant and his sisters.
The record also shows, that proceedings were instituted in Baltimore county court, by John 8. and Robert S. Hollins aud their wives, against the complainant, for the partition of a farm in Baltimore county, constituting part of the residuum of the testator’s estate not specifically devised, upon which a decree was passed by consent, on the 29th of March 1847, ordering a sale for partition. The proceeds of such sale were distributed amongst the parties to that cause, but before the decree was passed it was agreed between them, that the payment over to the complainants in that case, of their shares of the sale, should not. prejudice the present complainant, Frederick J. Dugan, in any suit between the parties in relation to the distribution and settlement of the estate of said Cumberland Dugan.
It was admitted, (in reference to the complainant’s third claim,) that John S. Hollins and Robert S. Hollins failed in business in 1833, and applied for the benefit of the insolvent laws, and obtained discharges thereunder, the latter in April 1834, and the former in June 1840; that in the year 1829, Cumberland Dugan began to endorse for the accommodation of his son-inlaw, Robert S. Hollins, who conducted the Washington Factory on joint account with his brother; that this accommodation, at the date of the will, 5th of October 1832, consisted of endorsements of notes to the amount of $10,320, and advances in cash to the amount of $3000 more, and continued in this condition until the 30th of May 1835, when Cumberland Dugan made affidavit to his claim upon said notes and cash loaned, against the insolvent estate of Robert S. Hollins, and filed the same with his trustees; that the notes which were the basis of this claim had been taken up by said Cumberland in the year 1834, in his life time, and that upon the claims as filed with the permanent trustee, the executrix, Margaret Dugan, received a dividend of $910.54 from the insolvent estate of said Hollins.
It was also admittéd that after the date of his will, Cumberland Dugan advanced the sum of $3400 to the complainant, to enable him to purchase a house; and that the testator’s daughter, Cordelia M., wife of Robert S. Hollins, died in January 1848, leaving a will, by which, in execution of the power secured to her under the deeds from her mother, of the 25th and 26th of March 1841, above mentioned, she devised all the estate conveyed to her by these deeds to a trustee, for the benefit of her husband during life, with remainder to her children; and that since the filing of the bill the complainant has been found a lunatic, upon proceedings duly instituted for that purpose.
The bill in this case, filed as above stated, avers that by the will of the testator the entire interests of the daughters in the estate are charged with the payment of the legacies of $13,750 given to the complainant and his brother, Hammond, by the fourteenth clause of the will, and with such other sums as may be required to effect that perfect equality which the testator designed should exist amongst his children in the distribution of his estate; that the sums which the testator advanced and loaned to John S. and Robert-S. Hollins are, with interest, a charge upon the shares or interests in the estate of the testator devised to his daughters and their children; that the devisees and legatees have entered into possession of the several parcels of real and personal property specifically devised and bequeathed to them, but no distribution of the general residuum of the estate has been made, nor has any part of the aforesaid legacies of $13,750 each, been paid, and the stocks which were specially set apart and devoted by the will to their payment, have been applied to the payment of the debts of the testator; that in order to prevent a sale of his estate, the complainant paid the residue ($9772.31) of the decree in favor of Gittings and others, on the 18th of February 1847, and had the same entered to his use, and though his property was liable for the whole amount of this claim, yet he is advised and charges that if was equally chargeable upon the estates devised to Hammond and the daughters, and that each of the daughters ought to have paid and contributed one-third part thereof; that the administrators d. b. n., c. t. a. have sued the complainant at law, as security on the bond of Mrs. Dugan, the executrix, for a devastavit alleged to have been committed by her; that Mrs. Dugan has been declared a lunatic, and that the property and effects in the hands of her committee ought to be applied to make good any devastavit she may have committed in exoneration of her sureties, and that Hammond Dugan having been one of the sureties, his estates in the hand of his devisees or alienees is justly chargeable with one-half of this pretended waste. The bill then prays for an account of the estate of the testator, and of the several claims of the complainant, in respect of said legacies of $13,750, and of the payments made by the testator for John S. and Robert S. Hollins, and of the payment made by the complainant on account of the decree in favor of Gittings and others, and that the administrators d. b. n., c. t. a. may be enjoined from prosecuting their aforesaid action at law against the complainant.
The defendants by their answers insist that the whole personal estate of the testator, whether specifically bequeathed or not, was chargeable with his debts, in exemption of his real estate, and deny that the will charges the real estate, or any part of it, with the payment of any of the debts or legacies, or that any part of the Gittings’ claim paid by the complainant can be brought against them, or against the real estate devised to them by specific devise or otherwise, but, on the contrary, they allege that the complainant was first bound to apply the amount of the judgment for devastavit ($4710.25, with interest from the 4th of June 1846,) in reduction of the amount paid by him on account of the Gittings’ claim, and that then the specific bequests in the hands of the complainant were next liable for the balance of said claim, which bequests were worth much more than such balance. They deny that Mrs. Dugan personally, or any part of her estate, should be held liable on account of the judgment for devastavit, or for any default or waste for which the complainant may be shown to be liable, or for any part of his claim as assignee of Gittings and others, because they say that the complainant and his brother, Hammond, as long as the latter lived, were, from the death of the testator, the agents of the executrix in the administration of her husband’s estate, and that upon the death of Hammond, the complainant was her sole agent in that respect, and she relied entirely upon him in the administration of the estate, and that for many years past, and before she was declared non compos mentis, she was, from extreme age and imbecility of mind, incapable of exercising any judgment in regard to the affairs of the estate; they allege that Hammond Dugan duly accounted for the assets of the estate received by him, and are, therefore, advised and charge that the complainant cannot, under the circumstances, throw off the liability for any devastavit in the administration from himself upon his mother or the estate of his deceased brother. They further insist that by the partition and the deed of July 1st, 1844, carrying out the same, the complainant is concluded from setting up any of the claims mentioned in the bill against any of the property of Hammond Dugan, which, by such partition and deed, was vested in the respondents or any of them. They deny that the legacies of $13,750 to each of the testator’s sons, to be paid by the executors out of the sales of the bank and other stocks, can be charged upon any part of the testator’s real estate devised specifically or otherwise to the respondents, or vested in them in any other way or manner; and they further say that from the particular clause mentioning these legacies, as well as from the whole will, it is clear the testator meant to make them a charge upon his personalty alone, out of which pecuniary legacies are generally payable; and they also submit whether, under this clause, taken in connection with other portions of the will, these legacies are to be considered more than general legacies, but if deemed specific legacies of so much bank or other stock to pay them, the respondents will then contend that as it was the duty of the complainant, as agent and surety of the executrix, to have obeyed the directions of the will, and sold, without delay, a sufficient amount of stock to pay them; any loss arising from the delay in selling the stock should be borne by the complainant. The two sons of the testator’s daughters, answering for themselves, say that the reversion in the property, which was decided to belong to Gittings and others, was devised specifically to them, and that by the decree in favor of Gittings, they have lost the value thereof, and they now insist that if the complainant is entitled to claim of them, or any of the respondents, as legatees or devisees of the testator, to make good any loss arising from the application of the bank or other stocks to the payment of the debts of the estate, they are equally entitled to claim of the complainant, as devisee of their testator, to make good in part the loss of the property so devised to them, and they will, in that case, set up their claim against the complainant as such devisee. The respondents also aver that the liabilities referred to in the fifteenth clause of the will, were all paid by the testator in his lifetime, and they deny that this clause embraces such liabilities so paid, but only refers to and means to secure the liabilities of the testator, by reason of the particular notes therein specified, which should not be paid or settled by the testator in his lifetime, but should become a demand or charge upon his estate, to be paid by his executors; and they further deny that there has been any charge made against the estate by reason of any note or notes referred to in said clause, as held by the testator’s daughters, or either of them. The respondents, John S. and Robert S. Hollins, rely upon their discharge under the insolvent laws in bar of any personal claim against them, and the respondents generally rely upon lapse of time and the statute of limitations as a bar to the complainant’s several claims.
The respondents also filed exceptions denying that under the averments of the bill, the complainant can claim payment for any devastavit on the part of Margaret Dugan as executrix, either from her or her estate, in the hands of her committee, or can claim any portion of the estate of Hammiond Dugan, in the hands of the respondents, for any liability of his as co-surety on the testamentary bond of his mother or otherwise, or can claim as one of the assignees of his mother of Hammond Dugan’s estate, and the other property conveyed in the deeds from his mother of the 25th and 26th of March 1841. They also aver in these exceptions that the above claims, or some of them, if embraced in the averments of the bill, and likewise any claim of the complainant to any fund in the hands of the administrators de bonis non of Cumberland Dugan, are properly cognizable in a court of law, and not in a court of equity.
The cause was then submitted to the chancellor (Johnson,) who delivered an opinion on the 26th of January 1854, which is reported in 4 Md. Ch. Dec., 139, and on the same day passed an order referring the case to the auditor, to state accounts in conformity with the views expressed in his opinion, and reserving “ all questions not therein decided” for further consideration and order. On the 9th of March following, the cause was removed to the circuit court for Baltimore city, under the act of 1853, ch. 123, and on the 26th of May following, the complainant entered an appeal in the latter court from the above order or decree of the chancellor.
The special auditor, to whom the case had been referred, then made his report, accompanied by several accounts, to which both parties filed exceptions. These exceptions being argued, the court, (Krebs, J.,) on the 15th of June 1855, delivered the following opinion thereon:
“The accounts to which these exceptions are filed, was stated by the special auditor, according to the principles, as he understood them, and under the direction of the chancellor’s opinion, delivered on the 26th of January 1854. The chancellor, in deciding the case, says, that he is of opinion that the complainant, Frederick J. Dugan, has a right, in a court of chancery, to call upon the other parties to the partition referred to in the case c to contribute their fair proportions of the money paid by him in discharge of the decree in favor of Gittings and others, mentioned,in the proceedings.’ In this passage the chancellor was regarding the parties solely as co-parceners, and deciding that when one had paid money in discharge of a paramount lien or claim upon his share, the others were bound to contribute equally to reimburse him. But the chancellor proceeds to state, that ‘ by the last clause of the will of Cumberland Dugan, he bequeathed all the rest and residue of his property, real, personal and mixed, partly by specific description and partly in general terms, to his four children, Rebecca Hollins, Cordelia Margaret Hollins, Hammond Dugan and Frederick J. Dugan, the shares given to his daughters being in trust. And it is alleged, and the allegation not seriously if at all denied, that some property embraced in this residuary clause remains to be distributed. Especially it is said that ground rents amounting to $>900 per annum, in which the testator’s widow (now deceased) had a life estate, and which constitute a part of the residue, yet remain to be distributed. And the complainant insists that no further distribution shall be made, including the amount in the hands of the administrator of Margaret Dugan, until he is paid the sum due him. It being the opinion of the court that the complainant is entitled to contribution, in respect to the amount paid by him, in satisfaction of the decree obtained by Gittings, an account must be stated for the purpose of ascertaining how much he is entitled to, and it would seem proper, in the mean time, that no further distribution should be made, as insisted on by the complainant.’
“ It must be understood, from this portion of the chancellor’s opinion, that he looked to this residue of the testator’s estate, real, personal and mixed, as property to be taken into view in settling the question of contribution between the parties, especially the ground rents amounting to $>900 per annum, which, as he states, constitute a part of this residue, and this is the more manifest from the fact, that he says that no further distribution of it should be made, because if it was not to be held to be applied, as it might be deemed equitably liable, for contribution to reimburse the complainant, there Was no reason why it might not have gone, at once, into the hands of the parties entitled to this residue. It is assumed by the chancellor, and conceded by the parties, that the personal estate of the testator, not specifically bequeathed, is insufficient to pay or refund the balance of this decree paid by Frederick J. Dugan; and if he meant to intimate, and I think it cannot be questioned that he did, that this real estate in the hands of the general residuary devisees was liable to pay this balance, this intimation must rest on the ground that a residuary devise of real estate is applicable to the payment of the debts of a testator before specific legacies of personal estate. That this is a general residuary devise of all the testator’s estate, not previously devised or bequeathed specifically in his will, is manifest from the language employed by the testator. After specifying certain portions of it, in dividing it amongst his children, he describes it as ‘the said entire residue.’ In the case of Spong vs. Spong, 3 Bligh, 105, the court, after maturely considering the question, for it was one of the points on which the decision of the court below was reserved, decides that a residuary devise of real estate is not a specific devise, and the reasoning of the judge who delivered the opinion in the House of Lords, is conclusive to show that these two descriptions of devises differ entirely in their character, and I am of opinion that a general residuary devise of real estate is not entitled to any such privileges as would exempt it from being resorted to for the payment of the debts of the testator, after exhausting his personal estate not specifically bequeathed. I do not think that tire opinion of the Court of Appeals in Chase vs. Lockerman, H G. 8f. J., 185, conflicts in any degree with the position above assumed. On the contrary, I think it is sustained by the principles and reasoning set forth in that opinion. The ‘general rule of marshalling assets,’ the court says, ‘is to apply first the personal estate, then lands devised to be sold for the payment of debts, then lands descended, lastly, estates specifically devised, even though they are generally charged with the' payment of debts.’ Now the court did not intend to include in live personal estate to be first applied under this rule, personal property specifically bequeathed, as the Court of Appeals says, in the case of Alexander vs. Worthington, 5 Md. Rep., 493, ‘ it was assumed in Chase vs. Lockerman, as a point clear in all the authorities, that land descended was first applicable in payment of debts in relief of personal estate specifically bequeathed,’ and this question, the court says, in the former case, Us too well settled in England and in this country, to justify argument thereon.’ When, therefore, would the leasehold estate of this testator, which he has specifically devised, the only portion of his estate, with a trifling exception, not yet applied to the payment of his debts, be resorted to for that purpose, according to the order of appropriation prescribed by the above rule? It cannot be doubted, I apprehend, that it would come in (lastly ’ amongst i the estates specifically devised,’ and would consequently be resorted to after a general residuary devise. It is to be observed that this testator ‘ orders and directs his funeral expenses and debts to be paid out of whatever part of his estate his executrix and executors, or a majority of them, shall think proper.’ He does not restrict them to his personal estate. He then makes a number of specific devises and specific bequests, one of the latter to his wife, and lastly, devises and bequeaths various enumerated parcels of his real and personal estate, together with the general residue, real, personal and mixed, as an entire residue, to his four children: ‘all his stocks,’ except the Baltimore and Ohio rail road stock, ‘ all his notes, bonds, mortgages, accounts, or other evidences of debts or claims,’ including his whole personal estate, except specific legacies, together with several parcels of his real estate.
“It cannot be doubted that he intended his debts to be paid out of this ‘ entire residue,’ as lie denominates it, especially as he does not designate particularly any part of his estate out of which they are to be satisfied. He certainly could not have meant that his specific legacies should be taken w'hilst any part of this residue was unapplied. And I am, therefore, of opinion that the devisees, under this residuary clause, can only claim that part of the ‘ entire residue’ that remains after all the debts are satisfied. That he did not intend this residuary devise of all his stocks, and of the real estate included in it, to be taken by the devisees to whom it was given as a specific and absolute gift, is manifest from the fact that though he gives them £all his stocks,’ yet in a preceding part of his will he directs his executors to sell £ such portions of his bank or other stocks ’ as shall produce the sum of $27,500, and in another part of his will he directs £as much money to betaken from his residuary estate as will produce $150 annually,’ to be paid to one of his grandsons, evidently looking to it as the fund to meet the pecuniary demands upon his estate, whether created by his will or by obligations existing in his life time. And further, it was the manifest purpose of the testator to equalize the shares of his estate, that his four children were to take under his will, and in making this equal division by his specific devises and bequests, he allots to them, respectively, various parcels of his property, giving to one, as he did to his son Frederick, a leasehold lot of ground, and the improvements thereon, in the city of Baltimore. Now if this specific legacy, or any part of it, should be taken to pay debts, the equality which he has so carefully established, would be disturbed, whereas, by taking from the residuary devise, which he gave to them equally in real and personal property, so much as may be necessary to pay all his debts, this equality is not at all affected.
££ Being of opinion, then, that so much of the amount of the decree paid by Frederick J. Dugan, as the personal estate of the testator, other than his specific legacies, is insufficient to satisfy, must be supplied by the real estate embraced in this general residuary devise, the next inquiry is, what personal estate is there other than specific legacies ? There is, 1st, a small balance in the hands of the administrators de bonis non, and 2nd, the amount of a judgment for a devastavit committed by the executrix, Margaret Dugan, rendered against her and Frederick J. Dugan, he and Hammond Dugan being the securities on her administration bond, the latter having died before the suit was brought.
“The defendants, in their answer, insist that the complainant should be made liable for the whole amount of this devastavit, because he, and his brother Hammond, so long as he lived, were, from the death of their father, the agents of their mother, the executrix, in the administration of the testator’s estate, and, after the death of Hammond, the complainant was sole agent, when she relied entirely upon him in the administratian of the estate, and for many years before she was declared non compos she was incapable of exercising any judgment in regard to the affairs of the estate; and they allege that Hammond duly accounted for the assets of the estate received by him, and that the complainant cannot throw off the liability for this devastavit upon his mother, or the estate of his deceased brother. This right, claimed by the defendants, to charge the complainant with the amount of this devastavit, is founded upon the imputation that he, whilst acting as agent as aforesaid, received and retained this money, and never accounted for it to the executrix. This court cannot act upon the assumption that he really did this without proof of the fact. The whole allegation in the answer, upon this subject, is new matter introduced by the defendants, and the burden of proof is upon them to show, by evidence, that he was an unfaithful agent. The admissions in the 'cause do not furnish this evidence. They say that Hammond accounted for all the assets that came into his hands as her agent. Why may not the complainant have accounted likewise? This devastavit might have occurred long before Mrs. Dugan became non compos, and at a time when she was perfectly competent to attend to the affairs of her husband’s estate, which she no doubt was at, the time of his death, otherwise the testator would not have appointed her executrix. There is no evidence of habits of waste or extravagance on the part of the complainant which might afford grounds for supposing that he squandered this money, or that specific sums of money came into his hands under such circumstances, either in regard to amounts or otherwise, as would justify this court in regarding him as having appropriated this money to his use. In fact there is nothing in the cause to satisfy the court that, he should be charged with it, for the reasons stated by the defendants.
“In this view, Mrs. Margaret Dugan having been primarily liable to make good this devastavit, whatever estate she left at her decease should be applied in reduction of this judgment, before her securities, or their estates, can be called upon to contribute. Her estate, it appears, was of inconsiderable value, and is in the hands of the complainant and the defendants, in equal shares, and the amount of it must be contributed by the three equally, in reduction of the judgment, and unless they can agree amongst themselves in regard to the value of her estate, it must be ascertained by the auditor of this court. The balance of this judgment must be paid, one-half by the complainant, as one of the securities of Margaret Dugan, on her administration bond, and the other half out of the estate of the other security, Hammond Dugan, in the hands of the complainant and defendants, in equal shares, and sufficient to pay the share of said judgment, for which he was responsible.
“The balance of the said decree that may remain unsatisfied, after the application of the personal estate of Cumberland Dugan, to be derived from the above sources, must be obtained from the real estate mentioned in the said general residuary clause. The court will pass such order, referring this case to the auditor, and decree for the sale of property, as may be necessary to furnish relief to the complainant, upon the principles indicated in this opinion.”
The court, accordingly, on the 5th of July 1855, passed a decree for a sale of the residuary estate of the testator, remaining undistributed and undisposed of, to repay the complainant the amount paid by him in discharge of the decree in favor of Gittings and others, and referring the case to the auditor to state accounts, in conformity with the principles decided in the above opinion. From this decree the complainant entered an appeal, on the 29th of September 1855, and the record was transmitted and filed in the appellate court on the 23rd of November 1855. Afterwards, on the 9th of February 1856, and after the auditor’s report and accounts came in, the defendants entered an appeal from the same decree, and it was agreed that one common record should be used at the hearing of all the appeals taken by both parties.
Syllabus and headnotes are prepared by the reporter or publisher, not the court, and are not part of the opinion.
