Wilson v. Barnet , 8 G. & J. 159 ( 1836 )

AhcheR, Judge,

delivered the opinion of the court.

The court below erred in expressing to the jury the opinion, that if they believed the petitioner had been acting as a free woman from the time of the appraisement with the knowledge and consent of the administrator, that then such facts amount to prima facie evidence that the debts of the testatrix have been paid out of other portions of the estate first appropriated by the will.

The principles of law involved in the prayer it is unnecessary to discuss, because we do not perceive any evidence in the record of the consent of the administrator, that the petitioner should act as a free woman, or that her residence in the city of Baltimore was, at any time previous to her arrest, known to him. It is quite as probable she had absconded from service, and that she was arrested by him when he first obtained a knowledge of her residence. She appears by the proof, to have resided in the city of Baltimore anterior to the death of the testatrix, until the time of her arrest, and if she had been in the custody and service of the administrator at the time of the appraisement, still there is no evidence whatever, that she departed from that service with the knowledge or consent of the administrator.

The defendant prayed the court’s instruction to the jury, that the plaintiff was not entitled to her freedom under the will of the testatrix, because the order of the Orphans’ court of Queen Anne's county, was evidence to show an insufficiency of assets. We think, however, the court were right in refusing to direct the jury as prayed for by the plaintiff, that the order of the Orphans’ court was evidence of an insufficiency of assets.

The doctrine is conceded, that intendments are to be made in favour of judgments of courts of competent jurisdiction, and that facts, as inferences, may sometimes be drawn from their rendition. But these principles cannot be applicable to this case.

The order of the Orphans’ court was ex parte, and is evidence for no purpose whatever in this case.

The proof of an insufficiency of assets, if such were the fact, was peculiarly accessible to the administrator; he had possession, or title to all the effects of the deceased, and might be supposed after such a lapse of time to know all the debts of the deceased. This he should have established by the ordinary media of proof, such being alone admissible as the best proof.

We therefore think, that the court were right in rejecting the prayer of the plaintiff, but wrong in the direction they gave to the jury.

JUDGMENT REVERSED AND PROCEDENDO AWARDED.