Hanson v. Worthington

Bartol, J., delivered the opinion of this court. The claim for relief of the complainants, Hanson and wife, and Nelson and wife, arises under the followin'? clan™ r-e ⁴³³ will of John Tolley Worthington: “I give and bequeath to my grandson, John Tolley Worthington, the sum of ten thousand dollars, to be by him put out at interest on real or personal security, or invested in bank stock, or in stock of the United States, or of the State of M&ryiaud, to be by him held in trust for tlie following uses, intents and purposes, to wit: in trust to apply the dividends, interest, issues and profits arising therefrom, during the life time of my wife, Polly Worthington, to the maintenance and support of my said wife, and if any surplus of such dividends, interest and profits should remain, over and above the maintenance and support of my said wife, then 1 give and bequeath the said sum to my said grandson, John Tolley Worthington! and from and after the death of my said wife, then I give and bequeath the said sum of tent thousand dollars, and the stock and securities in which the same may have been invested or placed, to be equally divided between the children of my daughter Mary, living at the time of the death of my said wife, and the then living descendents of my said daughter Mary, such descendents not taking per capita, but per stirpesj that is, the said descendants of a deceased child to take what their deceased parent, if living, would have been entitled to.” The testator having given other ten thousand dollars to Richard Johns, in trust, for certain purposes, directs as follows: “Item. — I hereby will and direct that the power of putting out. at interest and investing is stock the aforesaid two sums of ten thousand dollars, mentioned in the two last preceding «lauses of this my will, shall be a continuing power during the requisite continuance of the trust, and that ray grandson, John Tolley Worthington, and my son-in-law, Richard Johns, may, as often as they shall see fit so to do, severally collect the money by them put out at interest, and sell the slock by them ¡purchased as aforesaid, and again, and as often as they deem it expedient so to do, put out the same at interest, or invest m •stock as aforesaid.” By a-codicil to his will, file testator declares his will and intention to be, that the said provision for his wife shall be Tin fieu and bar of all her right, and thirds, and dower.” ⁴³⁴ The testator died in 1834, the will and codicils were duly admitted to probate on the 16lh day of September of that year, and on the 3rd da3^ of October, in the same year, lelters testamentary were duly granted thereon to John Tolley Worthington, the grandson, and Richard Johns, they being the executors named in the will. On the 26th day of September 1834, Polly Worthington, the widow, filed her renunciation of (lie bequest made in her behalf, and elected to take her dower and legal share of the estate. She died in the year 1838, and at the time of her death, the children of the testator’s daughter Mary, then living, were the complainants, Anna Maria Hanson and Comfort M. Nelson, and the said John Tolley Worthington, the trustee and executor, and Samuel Worthington, who were the.only descendants of the said testator’s daughter Mary.

The executors proceeded to administer the assets, returned an inventory on the 25lh day of October 1834, and passed several administration accounts, of which the 1st was passed on the 11th da3f of January 1837, the 2nd on the same day, the 3rd on the 14th day of February 1839, the 4th on the 31st day of December 1839, and the 5th and last on the 12th day of May 1846. By those accounts it appears that the whole personal assets of the deceased which came to the hands of said executors, was applied to the payment of debts, the expenses of administration, and the payment of legacies under the will, other than the legacy of ten thousand dollars first above referred to, and the surplus or residue of the assets was distributed and paid to the residuary legatees under the will, in the same manner as if the said legacy of $10,000 had not been made. The residuary legatees named in-the will were the testator’s eight grand-children, viz: John Tolley Worthington, Anna Maria Worthington, Comfort Worthington, Samuel Worthington, Polly Worthington Johns, John Tolley Johns, Richard Johns, and Sarah Weems Johns, two of whom, Anna Maria and Comfort, are complainants in this case. By the 2nd administration account, passed on the 11th of January 1837, it appears there was distributed and paid to the ⁴³⁵ eight residuary legatees $4700 each.

This sura for each of the complainants, Anna Maria and Comfort, was paid to their guardian, they being then minors; the receipts of the guardian show that he received for each of them as follows: in May 1835, $1500; in October 1835, $2700; and in July 1836, $500. ‘ By the. 3rd account, passed the 14th of February 1839, there was distributed and paid to each of said residuary legatees $950.96, which, by the several receipts exhibited, appears to have been paid as follows: ill January 1837, $200; in June 1837, $237; in September 1837, $113.96; and in October 1838, $400. By the 4th account, passed the 31st of December 1844, the executors are allowed for $700 paid to each of the residuary legatees, the shares of the complainants being paid to their respective husbands. By the 5th and last account, passed in May 1846, the executors were allowed for $36.53|-, amount paid to each residuary legatee, the same appearing to be a distribution of the whole residue of the assets among the residuary legatees, who executed the following release: “Know all men by these presents, that we, John T. Worthington, John T. H. Worthington, guardian of Samuel Worthington, Richard Johns, Jr., John T. Johns, R. Horace Love, who intermarried with Folly Worthington Johns, Thomas H. Hodges, who intermarried with Sarah W. Johns, Charles G. Hanson, who infermarried with Anne M. Worthington, and William 13. Nelson, who intermarried with Comfort Worthington, all grand-children and residuary legatees of JohnT.

Worthington, late of Baltimore county, deceased, do hereby severally acknowledge, each of us, to have received of John T. Worthington and Richard Johns, the executors of said deceased, the sum of ($36.53|) thirty-six dollars and fifty-three and a half cents, making, together, the sum of two hundred and ninety-two dollars and twenty-eight cents, and being in full of our respective proportions of the personal estate of the said deceased, as far as the same has come to the hands of the said executors, and accounted for by them with the orphans ⁴³⁶ court for Baltimore coutity; and in consideration thereof, we do hereby release, acquit, exonerate and discharge the said John T. Worthington and Richard Johns, executors as aforesaid, their heirs executors and administrators, of and from all and every action, sitit, claim or demand which could or might possibly be brought, exhibited or prosecuted against them, or any of them, for or on account of our said proportions, or the above mentioned sum or sums of money, or the payment thereof, hereby declaring ourselves fully satisfied, contented and paid, as above specified. Given under our hands and seals this seventeenth day of July, in the year eighteen hundred and forty-five. J. T. Worthington, (Seal.) J. T. H. Worthington, ~)/a > \ Guaidian for Sami. Worthington. € ' K* / Richard Johns, Jr., (Seal.) J. T. Johns, (Seal.) R. Horace Love, (Seal.) Thos.

H. Hodges, (Seal.) Chas. G. Hanson, (Seal.) W. B. Nelson, (Seal.) Signed, sealed and delivered in the presence of T. Hanson Belt Which release was duly acknowledged before a justice of the peace, and, on the 12th day of May 1846, was filed and recorded by the register of wills for Baltimore county. John T. H. Worthington, guardian of Ann M. Worthington and of Comfort Worthington, accounted with his said wards for the several sums of money received by him during their minority from the said executors, and on their arrival at the age of eighteen years, the said Ann Maria and Comfort severally executed releases to their said guardian, wherein each of them acknowledges to have received certain property and money therein specified, “being in Ml of all property and cash due to me by my said guardian;” and in consideration thereof, each of them “releases, acquits, exonerates and discharges the said John T. H. Worlhiuglon, as guardian as aforesaid, his heirs, executors and administrators, of and front all and every action, suit, claim or demand which couhl n:‘ ⁴³⁷ might possibly bo brought, exhibited or prosecuted against him, them or any of them, for or on account of the above mentioned property and cash, or the payment thereof, hereby declaring myself satisfice], contented and paid, as above specified.” The release of said Ann Alaria being ditto'd the 16th day of November 1839, and that of Comfort bearing date the 20th day of February 18ii, and were severally acknowledged and duly recorded. The complainants, Anna IVsalia and Comfort M., were married at about the age of nineteen years, the former to Charles G, Hanson, in January 1.840, and the latte? to Wm.

B. Nelson, in February 1842. The original bill in this case was filed oil the 1st day of April 1854, against John Tolley Worthington and Samuel Worthington, claiming from said John Tolley Worthington, as trustee, an account of the said $10,000 legacy, and the mam ner in which the same had been invested, and that there should be paid to the complainants their respective portions thereof. After answers were filed by the respondents, John T. Worthington and Samuel Worthington, the complainants, on the 8th day of January 1855, filed a petition praying leave to amend their said bill; and the same being granted, they on the 11th of January 1855, exhibited their amended bill, whereby they made parties defendants the said John T. Worthington as surviving executor, (Richard Johns his co-executor having died,) and also till the said residuary legatees, claiming among other things such relief as may be necessary to reform and correct the distribution of the said legacy of ten thousand dollars, so as to give to the Complainants their full share thereof, and interest thereon from the time the same became payable, and to cause any of the said parties who may have received more than his, her or their share or aliares, to account for, restore and pay over the same as they may be directed by the court, with interest thereon since the date of such wrongful overpayments; and that the whole distribution of said legacy, and its accumulated interest, may be now adjusted, settled and paid over, as if the same liad never been erroneously made. The defence of the several respondents is based upon the ⁴³⁸ lapse of time and the laches of the complainants in making their claim, their acquiescence and concurrence ill the settlement of the estate by the executors, and in the distribution of the assets, and the releases executed by the said Anna Maria and Comfort M. to their guardian, and the release given by their husbands to the executors are also relied upon as a bar to the relief prayed, and the residuary legatees have pleaded the statute of