Knight v. Brawner

Bartor, J. delivered the opinion of this court. This is an appeal from the equity side of the Circuit Court for Charles county. The bill was filed on the 28th of February 1855, by the appellants against one John H. Nelson, and the appellees, who were the sureties of Nelson, on his bond, as executor of the last will of Mary M. Nelson, deceased. The object of the bill is to recover a legacy alleged to have been given by the last will of Mary M. Nelson, to the wife of the appellant, (William Knight.) It states, among other things, that the executor had taken possession of the property and effects, sold the negroes which were the subject of the specific legacy claimed, passed several accounts, the final one on the 11th of April 1843, showing a balance of the estate remaining in his hands, to the amount of $2,211.31, and the bill charges the executor with a devastavit of the assets, and a failure to account for the balance remaining in his hands, whereby the appellants lost their legacy.

To this bill John H. Nelson filed his separate answer, on the 25th of June 1855, and from a memorandum in the record. ⁶ it appears that exceptions to said Nelson’s answer were filed by the complainants, which are still pending. A joint answer was filed by the appellees, in which they admit the death of Mary M. Nelson, that the copy of her last will exhibited by1- the complainants is a true copy, that John H. Nelson was appointed and acted as her executor, and gave bond as such, on which they were the sureties, and that the copy of the bond exhibited with the bill is correct. They deny all knowledge of the other allegations of the bill, and leave complainants to prove them; and they plead and rely upon the statute of limitations as a complete bar and defence against any recovery by the complainants against them in this action. On the 4th of September 1855, the complainants filed exceptions to this answer on the ground of insufficiency, which exceptions were, on the 25th of January 1856, overruled by the Circuit Court.

On the 5th of May 1856, an agreement was filed, signed by the solicitors of the parties, submitting the cause for final hearing as against the appellees on the bill and answer. The proofs relied on by the complainants in support of the allegations in the bill, are, a copy of the will, the testamentary bond, the inventory, account of sales, and of the several administration accounts passed by the executor in the orphans .court; all of which were exhibited with the bill of complaint. Under the agreement for submission, the judge of the Circuit Court examined the proceedings, and on the 19th of May 1859, passed a decree dismissing the bill as against the two respondents, Brawner and Dunnington. Whereupon the complainants prosecuted this appeal.

No objection to the jurisdiction appears by the record to have been made by the defendants in the court below, and we are precluded by the act of 1841, ch. 163, from considering that question on this appeal. The only defence relied on by the appellees arises under .the Statute of Limitations of 1729, ch. 24, sec. 21, which provides, “that all actions upon administration and testamentary bonds, shall be commenced within twelve years after the passing of the said bonds, and not after.” ⁷ In this case the bond upon which