Manning v. Thruston

Irving, J., delivered the opinion of the Court. Charles M. Thruston, of Allegany County, by his will, appointed Charles P. Manning and George A. Thruston, his executors. George A. Thruston having died, Charles P. Manning, became surviving executor. These cross-appeals grow out of orders of the Orphans’ Court, of Allegany County, upon the surviving executor’s accounts.

One of the questions presented involves the construction of the will. By the first clause the testator gives certain real and personal property to his wife for life. By the ²²⁰ second he gives a specific legacy to his daughter Mrs. Manning after the death of his wife, the life tenant. By the third clause, after giving certain pecuniary legacies not affected by this controversy, he makes this provision, “I declare that all such money or other property as I have, or may, or do give, or have advanced to any of my children, or grandchildren, during the life of such child or grandchild, shall not be chargeable to such child or grandchild in the division of my estate, but shall be in addition to, and not in satisfaction of any legacy or portion, or other benefit given by this my will, but I further declare, that all net amounts actually paid by.me, or which I hereafter pay, or which I am now liable for? and which have to be paid by my executors out of my estate, for my deceased son, Charles B. Thruston, since his death, shall be chargeable to, and form part of the third part of my estate given to his children, as hereinafter bequeathed; and for the benefit of my son George A. Thruston, and my daughter Jeannette Manning, equally, so that the third portion of all my estate given to each of them, my last named son and daughter, shall exceed by one-half of all the money I have paid or may hereafter pay, or am liable for, and my executors or estate has actually to pay for my late son Charles, and since his death, the third portion given hy me to his children in and by this my last will.” The fourth clause gives all the residue of his property, including the remainder, after the death of his wife, in the property given her, to his executors for sale and distribution in accordance with the next clause of the will, which is the fifth clause, and is as follows: “I give and bequeath to each of them, my son George A. Thruston, his heirs and assigns, and my daughte'r, Jeannette Manning, her heirs and assigns, one-third of all the rest, residue and remainder of all my estate, real, personal and mixed, and to Rosalie B., Elizabeth H. and Charles M. Thruston, children ²²¹ of my deceased son, Charles B. Thruston, their heirs and assigns, the remaining third portion of my estate, not hereinbefore bequeathed, that is to say of the rest, residue and remainder thereof, charged however, and chargeable with, the money actually paid by me, or which I may hereafter pay or am liable for, and is hereafter paid by my estate or my executors since the death of their father, for him as aforeherein directed, and declared to be- my will and intention.” The facts as admitted are, that Charles B. Thruston died in 1868, before the will was made, which was made in 1869; that the testator died in 1873; that George A. Thruston died the 4th of May, 1874, and the widow of the testator Nov. 14th, 1881.

It is also admitted that at the time of Charles B. Thruston’s death, his father the testator was liable for (and afterwards paid) the sum of nine thousand nine hundred and twenty-nine dollars and eighty-five cents, ($9929.85) as surety for Charles B. Thruston; and that the testator afterwards proved the same against the estate of his son Charles and received dividends thereon which reduced the sum paid on account of suretyship for Charles B. Thruston, by his father, to the sum of forty-seven hundred and fourteen dollars, and ninety-six cents, ($4714.96.) In the account which was propounded by Charles P. Manning, surviving executor, on the 11th of August, 1882, which was the fourth account upon the estate, the executor charges himself with sundry amounts of cash received since his last accounting, amounting to $6251.95, and prays allowances for sundry disbursements, including an overpayment of $22.66 on his third account, amounting in all to $730.57, and reducing the amount actually in hand to $5521.38. To this sum he then adds $4714.96 under the following description: “Advancements to the estate of Charles B. Thruston, deceased heir of Charles M. Thruston, deceased, per statement annexed and recorded with. ²²² the first account of 0. P. Manning, surviving executor of said C. M. Thruston, deceased, in the Orphans’ Court of Allegany County. Interest on said advancements to August 11th, 1882, $3899.3Í,” is then added.

Then follows this language “ Add amounts distributed to George A. Thruston and M. Jeannette Manning, heirs of C. M. Thruston, deceased, as per said executor’s first and second accounts, $5432.07.” These several sums added together make the amount of $19,567.72, which is then distributed in the account as follows: ■“ To the Estate of George A. Thruston, ‘ son,’ amount of former dividend...................$2716 03J “Distribution in this account to the estate of Geo. A. Thruston, '‘son,’ is accounted for as follows: “Paid John H. Young,‘note,’Geo. A. Thruston 916 59 “R. W. Pucy, ‘note,’ “■ “ 546 69 . “Executors S. P. Smith, “ “ 496 21 “M. M. Townsend, “ “ 364 73 “The above claims with interest to date were paid by C. P. Manning, surviving executor of C. M. Thruston, deceased, are hereby charged by him to the estate of Geo. A. Thruston as portion of that estate’s distributive share in this account.

The said claims being notes given by the late Geo. A. Thruston, and guaranteed by the late C. M. Thruston. “ Paid Estate of George A. Thruston, ‘son,’............................................. 436 47 $5476 72§ ²²³ Brought forward........................ $5476 72J- “To M. Jeannette Manning, ‘ daughter/ amount of former dividend... 2716 03 J “Distribution in this account..........2760 69 ■—---$5476 72i “ To the heirs of Charles B. Thruston, £son,’ advancements as per statement of Charles P. Manning, &c. * * *.............................$4714 96 “Interest, &c. * * *.........................3899 31 -- 8614 27 $19,567 72” On the 11th of August, 1882, this account was rejected, and the Orphans’ Court ordered another account to be stated. The directions for that account declared the money paid for Charles B. Thruston “ after said Charles B’s decease, is an advancement to the heirs of said Charles B. Thurston, and no interest is chargeable on such advancement, and that as soon as there is distributed to the estate of George A. Thruston and Jeannette Manning, each the sum of forty-seven hundred and fourteen dollars and ninety-six cents ($4714.96,) the money arising out of the sales of the remaining property belonging to the estate, shall be distributed, after paying all debts and expenses of the estate, as follows, to wit: one-third to the estate of George A. Thruston, one-third to M. Jeannette Manning, and the remaining third to the .children of Charles B. Thruston,” and in stating the account ordered the executor to pay the several debts (which had been set off in the distribution against George as his debts for which his father was only security,) as debts of Charles M. Thruston proved against his estate ; and then to distribute the remainder of the estate to George A. Thruston and Mrs. Manning. The effect of this decision and order was to charge the estate ²²⁴ of the testator with the payment of George’s debts, and still to give him a share of the estate undiminished thereby, and thus to leave nothing to be distributed to the children of Charles, because by this method of computation the distributive shares of George and Jeannette did not reach the amount of “advancements” on account of Charles M. Thruston.

The account was stated in accordance with the views and order of the Orphans’ Court, and was excepted to; but the exceptions were overruled and the account was ratified and confirmed. Mrs.' Manning by her appeal complains of the disallowance of interest upon the payments on account of Charles B. Thruston, which she contends the Court improperly called and treated as “advancements;” and also of the refusal to allow the debts paid for George A. Thruston .to be set off against his distributive share. Elizabeth H. Thruston and others, children of Charles B. Thruston, by their appeal make the same complaint against the order disallowing the set-off against George B. Thruston’s distributive share. They insist, however, that the disallowance of interest upon the so-called “advancements” on account of their father, Charles B. Thruston, was perfectly proper.

The determination of the question whether interest is properly chargeable upon the payments made on account of Charles B. Thruston, depends entirely upon the construction to be given the will of Charles M. Thruston. Technically this was not an “'advancement,” as-it is called by the Orphans’ Court and by the account; because it is not a case of intestacy. Clark and others vs. Willson, Adm’x, 27 Md., 700 ; Pole vs. Simmons and Pole, Ex’rs, et al., 45 Md., 250 . But it does not follow, as has been contended, that because it is a claim against Charles B. Thruston’s children, and their distributive share of the estate, and not a technical advancement, it is of necessity an interest bearing debt.

On the contrary, we think it ²²⁵ is apparent from the language of the testator in several places in his will, that he intended, no interest to be added to the actual amount paid by him or his executor. In other words, we think he intended this to he put upon the footing of an advancement in its technical sense; and if so, no interest would he chargeable by the current of authorities applicable to an advancement case. Osgood vs. Breed’s Heirs, 17 Mass., 355 ; Miller’s Appeal, 31 Pa. St., 337.

We think the Orphans’ Court was right in supposing that the testator intended his estate to be divided into three equal parts between his children (treating the children of Charles [the son] as representing one share), and in regarding the amount “actually paid” for Charles as a part of his estate for the purpose of distribution only, so that the other children would be put upon equality to the extent of the amount so paid for Charles. We think the Court was right also in charging no interest upon the amount paid for Charles, but the Court destroyed the equality of distribution by their ruling with respect to the debts of George paid by his father’s executor, and to that extent there was error. It is clear that the will contemplates equality between the living children and the children of the deceased son at the