Addison v. Addison

Bowie, J., delivered the opinion of the Court. James L. Addison, late of Prince George’s County, Maryland, on the 9th of Dec., 1864, made and executed ¹⁹⁴ his will, duly attested to pass real estate, in which he devised as follows : “I give, devise and bequeath in fee-simple, to my brother Anthony Addison, and to my sisters Margaretta Addison and Harriet M. Bayne, equally, share and share alike,, my farm called ‘Cole Brooke’ on which I reside, containing about three hundred and seventy-five acres of land. But my sister Harriet is not to derive any benefit therefrom during the life-time of my wife, the right of enjoyment of her third part, or of participating in the profits thereof, to commence'from the day of the death of my wife. “Item. — I give, devise and bequeath to my wife Betty, in lieu of her dower in my lands, and all her rights, as widow, in my estate, five thousand dollars, to be paid to her within two years, with ten per cent, interest on the said five thousand dollars from the date of my death, absolutely to be held as her own individual property. I make this provision believing it to be that which will be most satisfactory to her as well as best for her interest. “Item. — The share in ‘ Cole Brooke’ which I have devised to my sister Harriet M. Bayne, to take effect after the death of my wife,'I desire shall be equally enjoyed, share and share alike, by my brother Anthony and my sister Margaretta, during the life-time of my wife. * * * * It is my wish that ‘ Cole Brooke ’ shall continue in the family always, and hope that my devisees will remember my wishes.

But this rests with themselves, the property is theirs, absolutely in fee-simple. “Item. — All the rest and residue of my real estate, (Texas lands) I give, devise and bequeath to my brother, Anthony Addison and William Meade Addison, equally, share and share alike, with the request that should the Texas lands ever become valuable, they will give to Daniel D. Addison, one-fourth their value. “Lastly. — I appoint my brother, Anthony Addison, sole executor of this my last will and testament.” ¹⁹⁵ Subsequently, the testator, made a codicil, as follows: “As a codicil to my will, I devise and bequeath as follows : ‘£ To my brother, Anthony Addison, and to my sister, Margaretta Addison, all my personal property. What money Betty may have on hand I wish her to retain after paying my funeral expenses, which I beg may be very plain. What money may be due me from — Government on account of salary, I give and bequeath to my sister Margaretta. “The silver pitcher presented to my late sister Betsey, by Mrs. Taylor, (and left to me,) I desire Margaretta to have. My gold watch 1 desire to he given to my nephew Murray Addison.

Whatever amount may be derived from — Government on account of the slaves that belonged to my wife Betty, I wish her to have and the amount derived from my slaves * * * is to he divided equally between my sisters Harriet Bayne and Margaretta Addison. And I do hereby ratify and confirm my will, etc.” On the 20th of August, 1870, the interest of Mrs. Bayne under the will, was transferred to Woodbury Wheeler, one of the complainants, in trust for his wife, Mrs. Wheeler. The testator being dead, Anthony Addison presented the will for probate, obtained letters testamentary, hut passed no account, having died before the account which was being prepared, was finally adjusted. During the life of the executor, to wit: on the 29th December, 1870, Wheeler and wife filed their hill in equity, against Anthony, Margaretta and Mary E. Addison, for an account and settlement of the personal estate of James L. Addison, and to have the real estate sold, if decreed to be liable for debts and legacies, and the proceeds invested for the protection of the estate thereafter to vest in the complainants. ¹⁹⁶ It is charged by the complainants, that neither the legacy to the widow, nor the interest, nor any part thereof, has been paid ; that besides the personal estate left by the testator, there is nothing in the jurisdiction of the Court, except the “Cole Brooke” estate, liable therefor ; which estate was annually depreciating in value, and the interest and estate conveyed to Mrs. Wheeler, would be lost beyond recovery, and absorbed by the legacy, should it be held liable for its payment, except by the interposition of the Court.

The respondents, Anthony Addison as executor of James, and Anthony and Margaretta Addison, devisees of the real estate, by their answer admit the will and codicil, as above set forth ; and that there was no other property of the testator within the jurisdiction of the Court to pay legacies ; they allege some small payments had been made to the widow on account of her legacy, and the executor alleges, that he had passed no accounts, because there were no debts to be paid ; that all the personal estate, (except a few specific legacies enumerated in the codicil,) had been bequeathed to his sister and himself, who were in the joint occupation, possession and enjoyment of the same. They deny emphatically, that the estate called “ Cole Brooke” is deteriorating in value, but allege, although there is a general depression in real estate at present, which would render a sale most injurious to the interests of all concerned, the property is so favorably situated, (being within three miles of Washington City,) it must speedily attain its former value, and exceed it greatly; hence there is no ground for the apprehension that the interests of the complainants will be absorbed by the payment of the legacy, and the complainants have not offered to pay any part of the said legacy, or the interest provided for in said will. The respondents deny that the personal property is primarily or proportionally liable for the payment of the ¹⁹⁷ legacy of $5000, for it is manifest from the codicil, that it was not intended to require the payment of the legacy out of the personal property therein mentioned. They admit the testator had some undivided interests in lands in Texas, but the quantity and value thereof was unknown ■; part of said lands were devised to Wm.

Meade Addison, who it is insisted ought to have been made a defendant. Mrs. M. E. Addison, widow of the testator, in her answer insists, that “Cole Brooke” is responsible for the sum devised to her, and if not a charge on the land, that the personal estate is liable therefor ; and if neither is chargeable nor liable expressly, yet as she did not renounce the will, and claim her dower and thirds, she has, as widow, a valid claim in equity, against, the estate of the testador, for the sum of $5000, with interest. Anthony Addison, executor and one of the devisees having- died, his widow and heirs-at-law, and Murray Addison, adm’r de bon. non, c. t. a., of Jas. L. Addison, were made parties.

The adm’r b. b. n., submits to account, and the heirs-at-law rely on the answer of their intestate, Anthony Addison, previously filed. Evidence having been taken by complainants and defendants, under commissions duly executed and returned, the cause was submitted to the Court below, by which an opinion was filed, and an order passed referring the case to the auditor, directing an account to be stated upon certain principles set out in the opinion, substantially as follows : The complainants have a right to the aid of the Court to enforce the payment of the legacy, the personal estate being insufficient and the land depreciating. The personal estate is to be first applied to the payment of the legacy, which being- insufficient, the deficit must be supplied from the proceeds of the land in Maryland. The auditor, stated accounts A, B, C, D, in conformity with the instructions of the Court, which coming to be heard upon exceptions filed by the defendants, Murray ¹⁹⁸ Addison, adm’r d. b. n., and Margaretta Addison and the heirs-at-law of Anthony Addison, were ratified and confirmed by final decree of the Court, on the 21st of October, 1874, and the defendant Murray Addison, adm’r d. b. n., is adjudged to be indebted to the defendant, M: Elizabeth Addison, in the sum of $1637.98 with interest, as appears by account F, and the children and heirs-at-law of Anthonjr Addison, are adjudged to be indebted to the widow, M E. Addison, $2288.77 with interest, as appears per account G, and Margaretta Addison is adjudged to be indebted to the same in a like sum of $2288.77 with interest as per said account G, and the complainants, Wheeler and wife, are indebted to said M. Elizabeth Addison, $1209.26 with'interest as per said account G, which sums the respective defendants and complainants were required to pay on or before the 1st of December next, and in default thereof, the real estate called “Cole Brooke,” was decreed to be sold for payment of their proportions of said legacy.

In the interval between the interlocutory order and the final decree, Mrs. M. Elizabeth Addison, widow of James, filed her petition in the cause, alleging there was a large sum due her, amounting to about $7000, as legatee, under the will of her husband, which was conceded by all parties ; that she was without the means of support; that she had prepared a bill to enforce the payment of her legacy, but had waited the result of this case, to see if the Court would not decree a sale of property sufficient to pay her claim, but does not feel called upon to wait the decision of the questions which have arisen between the parties; she therefore prayed the estate lying in Prince George’s County might be sold, etc. No further action seems