Daingerfield v. May

Grason, J., delivered the opinion of the Court. This case is before us upon appeals from a decree of the Circuit Court for Prince George’s County, sitting in equity, passed on the 13th July, 1867, as well as from an order of said Court, passed on the 20th June, 1868, ratifying the auditor’s account, stated in accordance with the directions of the said decree. The questions presented by the record, which, in our judgment, are material to be considered, are, first, whether the appellant is chargeable with the sum of five thousand dollars as assets of the estate of his testatrix, and with interest thereon? and, secondly, whether there was any error in the rulings of the Court below upon the exceptions filed by the respective parties to the evidence and to the alleged insufficiency of the averments of the bill of complaint, and to the auditor’s account ? The bill was filed to recover from the appellant the sum of one thousand dollars, a legacy bequeathed to ³⁴² the appellee by the will of Mrs. Daingerfield, with intei'est thereon.

The appellant states in his answer, which is not sworn to, that at the time of the execution of the bond for the payment of the five thousand dollars, which is claimed to be assets in his hands, the testatrix executed a>will, and that the bond and will' constituted a family arrangement, the one having been executed in consideration of the other; and that, as the will had been revoked or destroyed he was released from the obligation of the bond. The record contains no proof whatever to sustain the truth of this statement. The bond was dated the 15th May, 1840, and was conditioned for the return to the estate of the testatrix, within one year after her death, of the negroes named in the bond, or such of them as should be then living, with their increase, or to pay one thousand dollars of the sum mentioned in the bond to the appellee, two thousand dollars to Eozeir T. Daingerfield, and to retain the other two thousand- himself, and upon the performance of either of these two conditions the bond was to be void; .but upon the non-performance of both it was to remain in force, and it was left Optional with the appellant as to which he would pex’fox’m; but he was required to elect between them, within twelve months after the death of Mrs. Daingerfield. Mrs. Daingerfield died in 1860, (the answer of the appellant states in the month of June,) and neither condition of the bond has been performed by him.

Mrs. Daingex’field executed her will in 1853, by which she bequeathed six hundred dollax-s of the money due upon the bond to the appellant, and provided that the remainder of it should be brought into her general estate. She bequeathed a legacy of one thousand dollars to the. appellee, and provided that if the appellant should pay the appellee the one thousand dollars mentioned in the bond, that the legacy to her should be void; but if the appellant should ³⁴³ pay the thousand dollars out of the estate, he was to be discharged from that amount on his bond. It was urged in argument for the appellant that he was prevented by the late civil war from bringing the negroes, who were then in the State of Louisiana, into the estate within the time required by the condition of his bond, and that, as that instrument left it optional with him whether to bring them into the estate or pay the money, he was released from the payment. Even if he was prevented from bringing them in, we cannot see upon what principle of law or equity he would be thereby released from the payment of the money.

But there is no reason to believe that it was impossible that the negroes could be brought into the estate, had the appellant desired it. More than a year elapsed after the death of Mrs. Daingerfield before intercourse between the citizens of this State and those of Louisiana was prohibited by any law, or act, or proclamation, passed by Congress or issued by the President of the United States, during which time this condition of his bond might have been performed by the appellant. The will was admitted to probate in November, 1860, and in January, 1861, the appellant returned a list of debts due the estate of the testatrix, in which he included the debt, due by him upon his bond. This we consider as an election made by him within the time required by the condition of his bond to pay the money and to keep the negroes.