Ing v. Baltimore Ass'n

Bowie, C. J., delivered the opinion of this Court: Rebecca Montoilh, late of the City of Baltimore, on the 7th April 1858, made her last will and testament, bequeathing, after the payment of her just debts, (of which she declared she did not then owe any,) certain small pecuniary legacies, and further devising as follows: “I am desirous of disposing of such worldly effects as I may die seized or possessed of, so that the poor may bo benefited thereby, and with that view, I do direct my executor hereinafter named, immediately after my death, to sell my property, and to sell at such time as in his judgment the most can be realized therefor, and the proceeds thereof pay to the Baltimore Association for the improvement of the condition of the poor, “to be by them used in purchasing wood and other fuel and provisions for the benefit of the poor,” and appointing the appellant her executor. This will was proved on the 26th August 1858. It does not appear from the record when letters testamentary were granted. The appellant, as executor, passed his first account on the 31st March 1860, showing a balance in his hands at that date of $1397.53.

Consisting of specifics, - - $20 00 Bank stock, - 440 00 Cash, - - - 937 53 $1397 53 On the 15th March 1861, the appellant filed his 2nd account showing a balance,of $592.16, of which he proposed ⁴³⁰ to retain $191.15, to be appropriated, under tbe will, to enclosing the remains of the testatrix, with granite curb and iron railing, and leaving $401.01, which he informed the Court was not in his opinion distributable, because of notice given the executor of a claim for personal services rendered by a Mrs. McIntyre, her husband and family, to Miss Monteith, amounting to $520; he thought the claim extravagant, but should be guided in pleading limitations by the judgment of Professor Smith and Dr. Knight, and if the claim should be defeated, there would be a bill against him as executor, for professional services and Court charges. The appellees on the 3rd March 1862, filed their petition against the appellant, praying he may be required to pass a third special account and pay to them as legatees any money properly coming to them; that the money now in ■his hands, if not now payable to them, may be invested, and claiming interest on the amount in his hands not invested: aand if there be any claimant against said estate for whose claim it is necessary that any money should be held and not paid over to the Association, then the said executor may be ordered by this Court, to take such proceedings as may be legal and proper to ascertain said claim and debar said claimant from the right further to delay said executor in the settlement of said estate.” The appellant file.d two answers to this petition, which virtually assume the same ground for the non-payment of the balance in his hands, which he relied on in tho statement, annexed to his second account, viu: that there was an outstanding claim against the estate, which was in the course of litigation, and which he was entitled by law to retain assets sufficient to satisfy. General replications were filed to these answers, and depositions taken on behalf of the appellants, to prove the existence of the claim and some docket entries and documentary evidence filed. The decree of the Orphans’ Court passed on the 29th March 1862, requires