Smith v. Smith

Le Grand, C. J., delivered the opinion of this court. This is an appeal from the orphans court for Washington county. It appears that George Smith departed this life in the month of March, in the year 1834, leaving a will, in which, among other things, is the following: “It is my will that my negro girl Maria, be retained by my wife until she arrives at the age of thirty-five, which will be in October 1858; and should it so happen that my wife should die before that period, that then and in that case my son shall take her himself, and have her time for the term of her service valued, and account therefor as he has to do as executor.” Mrs. Smith, the wife of the testator, died in June 1852, and letters of administration were granted on her estate to the appellee. About two years after the death of his intestate, he, as executor of his father, settled an account, in which he omitted to charge himself with the value of the services of the negro woman, from the death of his intestate up to the lime when she would be entitled to her freedom.

The object of the petition in ibis cause, was to compel him to so account and charge himself. The appellee admits all the principal allegations of the petition, hut claims exemption from all liability, because, as be alleges, his intestate during her life, sold the girl for the term prescribed in the will of her husband for the sum of $275, and that the person to whom she was so sold, afterwards sold her beyond the limits of the State of Maryland; and he further avers that she was so sold, “with the knowledge of all the children of the said Nancy Smith,” the testator’s widow. Under the will of George Smith, his widow was entitled to the services of the girl daring her life, if she should die before the girl attained the age of thirty-five years, and she had, therefore, a clear right to sell the girl for the term; the right of the purchaser to cease whenever Mrs. Smith should die, or the girl attain the age of thirty-five. This right of disposition — her husband’s estate being solvent — was only