Smith v. Wilson

The grant of letters of administration by an orphans court cannot be presumed from lapse of lime; tbe grant of such letters is a judicial act and must be proved by the record; before inferior evidence of the contents of such records can be received, their existence and loss must be accounted for, or that mutilation from time or accident has made them illegible. Administration upon the estate of a deceased party is indispensable to the derivation of title to his personal estate.

Appeal from the Circuit Court for Anne Arundel county. Replevin, for a negro slave named Milly, brought on the 30th of April 1849, by the appellee against the appellant. Pleas non cepit, property in the defendant, property in a stranger, and actio non accrevit infra tres annos. On the former appeal in this case by the plaintiff, reported in 10 Md. Rep., 67, the judgment was reversed and a writ of procedendo ordered. Under this writ a trial was liad in Calvert county, where the suit was originaliy instituted, and the jury were unable to agree upon a verdict. The case was removed, upon suggestion of the defendant, to Anne Arundel county, whore the present trial, resulting in a verdict for the plaintiff, was had. 1st Exception. It was agreed that the evidence in the former trial as contained in the procedendo record, including the documentary evidence, may be read to the jury at the present trial as if given to them orally by die several witnesses, therein named, from the witness stand. From this evidence it appears that the plaintiff, to support the issues joined on his part, having proved the granting of letters ad colligendum to him in due form of law, by the orphans court of Calvert county, on the 23rd of February 1849, on the estate of Samuel Owens, who died in said county in the year 1815, then proved by Richard Mackall, the register of wills for Calvert county, that he has diligently examined the records of his office, and that from them it nowhere appeared that any letters testamentary, or of administration, were/ ever granted upon the estate of said Samuel Owens, or other proceeding had in reference thereto, prior to the appointment of the plaintiff, in this case, administrator ad colligendum. The plaintiff then proved that, the negro slave Milly, in controversy in this suit, was owned by the said Samuel Owens at the time of his death. Other evidence was then offered on both sides, the purport of which is sufficiently stated in the opinion of this court upon the former appeal in 10 Md. Rep., 73 to 75. The defendant then asked the court to instruct the jury as follows: 1st. That from the evidence in this cause, if believed by the jury, they may presume that letters testamentary or of administration had been granted on the persona] estate of the said Samuel Owens, and that the said estate had been settled up, and that the said negro Milly was held by the said Mary Owens, as tenant for life under the will of Samuel Owens, and that if they so find then the plaintiff as collector, as aforesaid, is uot entitled to recover in this action. 2nd. That from the evidence in this cause,. if believed by the jury, they may find that Mary Owens, the widow and legatee of Samuel Owens aforesaid, sold her life-estate in the said negro Milly, and delivered her with the consent of all the legatees in reversion, of the said negro Milly', they being found to be of full age at the time of the consent, or if under age at that time, after arriving at full age, and knowing of such sale, acquiesced therein, and if the jury further find that the said sale was made for the payment of the debts of the said Samuel Owens, and that- the said debts have all been paid, then that the plaintiff, as collector of the said Samuel Owens, has no right to recover in this action. The court (Brewer J.) granted the first prayer and rejected the second, to which rejection of her said second prayer the defendant excepted. 2nd Exception. The plaintiff then on the whole evidence, as contained in the first bill of exceptions, and which is to be considered as part of this, and as inserted therein, prayed the court to instruct the jury as follows: 1st, That the facts and circumstances, as given in evidence in this case, if believed by them, are not sufficient in law to warrant, the jury in presuming that Mary Owens took out letters testamentary or of administration on the, personal estate of Samuel Owens. 2nd. That from all the evidence in the cause, if believed by them, the jury may find that no letters testamentary or of administration, were ever granted on the personal estate of Samuel Owens, by the orphans court of Calvert county, and that no proceedings were ever had in the said orphans court, in reference to the said estate, prior to the appointment of the plaintiff as administrator ad colligendum thereon, and if the jury so find, and shall believe the. other evidence in the cause, they should find a verdict for the plaintiff. 3rd. That if, from the evidence, the jury shall believe, that in the sale of negro Milly in 1834, to Abraham Lowe, if the jury shall find such sale, the said Mary Owens did not sell tfle said negro, as executrix or administratrix of Samuel Owens, but only sold the interest she claimed under his will,, and-shall further find that, up to the time of granting the letters ad colligendum to the- plaintiff, there had been no administration upon the personal estate of the said Samuel Owens, then that such sale conveyed no such title to the said Abraham Lowe, or his assigns, in said negro woman, as under the pleadings and evidence in this case, would be a bar to the plaintiff’s right of recovery. 4th. That if from all the facts and evidence in this cause, if believed by them, the jury do not find that Mary Owens1 took out letters testamentary or of administration upon the personal estate of Samuel Owens, or that any other person administered upon the same, prior to the granting of letters ad colligendum to the plaintiff, and shall believe the other evidence in this cause, that then the plaintiff is entitled to recover, although they should find that', in the year 1834, the' said Mary Owens sold and delivered the said negro woman. Miily to Abraham Lowe as a slave for life. The court rejected the first of these prayers and granted the others, to which granting of the plaintiff’s second, third and fourth prayers the defendant excepted, and the verdict and judgment being against her, appealed.