Miller v. Miller

Miller, J., delivered the opinion of the Court. This appeal is from an order of the Orphans’ Court for Cecil County, dated the 10th of September, 1890, directing S. Kennard Miller and Isaac D. Davis, the executors of Joseph Miller, to bring into Court the sum of $1200, with interest thereon from the death of Rebecca Miller, and to state an account distributing this sum and interest, according to the will of Joseph Miller, to the parties now entitled thereto. By his will the testator directs that the “sum of $1200 out of my estate be placed at interest on first mortgage, or that one of my executors shall retain that amount in their hands, and pay over to my said wife, Rebecca, the interest thereof at six per cent., for each and every year of her natural life, and after her death the said sum of $1200 * * * is to fall back again into my estate, and disposed of according to law by my executors, and equally divided amongst my heirs.” The testator died in December, 1882; his widow, Rebecca, died on the 1st of July, 1889; and on the 1st of July, 1890, the parties now entitled to this money filed the present petition asking that the executors be required to bring the same into Court and distribute it. The executors, in their answer, allege that on the 5th of ⁴⁴⁴ August, 1883, they invested $1100 of this money in a first mortgage on the property of one Joseph T. Gantwell and wife, in the village of Cherry Hill, Cecil County, and insist that they are responsible only for the proceeds of the sale of that property, which had been sold under a previous order of the Court of the l'lth of March, 1890, for the sum of $550.

A replication to this answer was filed by the petitioners, and upon the issue thus made testimony was taken. Davis, one of the executors, says that he and his co-executor, Miller, invested $1100 of this legacy, as such executors, in the mortgage from Cantwell and wife under this clause of the will, and he is the only witness who testifies on this subject. By reference to the mortgage itself, we find that it is dated the 25th of August, 1883; that it is given to Miller and Davis as individuals; that no mention is made of them as executors of Joseph Miller, or that the money loaned was part of his estate, and that it makes no reference whatever to his will. It recites that Cantwell stands indebted to Miller and Davis in the sum of $1100 “in the following manner, viz., to Miller in the sum of $550 and to Davis in the same sum, and by the defeasance clause the mortgagor is required to pay these separate sums to each of them individually, with interest from date on or before the 25th of August, 1885, and the interest is made payable on the 1st of May in each and every year during the continuance of the mortgage.

It contains a power of sale in case of default, and both the mortgagees, Miller and Davis, made affidavit that the consideration was true and bona fide as therein set forth. Now, if this was an investment under the will, and the money loaned came in fact from the estate of the testator, it is almost inconceivable that the mortgage should have been so drawn. We find it impossible to reconcile the mortgage in this form with an honest and faithful discharge by the exec ⁴⁴⁵ utors of their duties under the will. The attorney who drew the mortgage testifies that he did so at the request of Miller, (one of the executors), who told him the amount, when the interest was payable; and