Gardner v. Simmes , 1 Gill 425 ( 1843 )

Chambers, J.,

delivered the opinion of this court.

The will of T. C. Reeves, by the clause which gave the residuum of his personal estate to his wife, passed to her an absolute interest in one moiety thereof, and an estate for her life in the other moiety. There is no allegation on the one side, nor admission on the other, that any of the debts or legacies were unpaid by Mrs. Reeves, the widow and executrix of T. C Reeves, in 1840, when she died. Letters testamentary had been granted to her in 1825, and after a period of lime little less than fifteen years, the orphans court, or this court, in reviewing its proceedings should assume the payment of all debts and legacies in the absence of proof to the contrary.

This presumption rests upon the ground that it was the duty of the executrix to discharge the debts in a due course of administration, and in the period within which, by law, she could be compelled to pay them, and then to pay and deliver the legacies bequeathed by the will. As to such legacies as were bequeathed to herself the law will assume that she held them as legatee after the lapse of a sufficient period allowed for the settlement of the estate. What would be regarded such a period might depend upon the peculiar circumstances of each particular case, and we do not deem it necessary to define the minimum limit, it being sufficient to say in this case ^he period has been long enough to satisfy more than the largest demand in that respect. Mrs. Reeves must therefore be regarded as being in possession, as legatee, of whatever was bequeathed to her; and in that view of the case there is no room for the application to this case of the law claimed by the appellee. The acts of 1798 and 1820, confer jurisdiction on the orphans courts to coerce the delivery over of property or chose in action or payment of money by the representative of the executor or administrator to the administrator de bonis non only in case the property, chose in action or money belonged specifically to the deceased while alive, and remained in the hands of the executor or administrator as such, and not as legatee, or in case the chose in action, or money was received by the executor or administrator in that capacity, and was so retained in that character till the death of such executor or administrator.

In looking through the record we find one item in regard to which there may be collected from the answer of the appelpellants facts which may prevent the conclusion otherwise inferrible from the lapse of time that it was not held by Mrs. Reeves at the time of her death as executrix.

In that answer it is said, they find the note of Thomas 8imm.es among the papers and not paid ;” and the respondents go on to disclaim all obligation to pay interest on this, as on any and all the other, debts claimed by the petition; this debt or note of Thomas Shames being one of the debts due to the testator Thomas C. Reeves, at the time of his death, and mentioned in the list of debts returned by his executrix. It is proper, therefore, that the appellee should have the opportunity of proving, if the fact be so, that this note did remain in the hands of Mrs. Reeves, as executrix, at the time of her death, in which event the orphans court will be authorised to decree its delivery to the appellee; but they cannot decree its nominal or its estimated value. Indeed, the orphans court seems to have totally mistaken the whole scope and purpose of the acts of Assembly in regard to their authority in this respect. In no event have they power or jurisdiction, under these laws, to decree the payment of value in such cases, but only the delivery of property and choses in action or payment of money specifically,

DECREE REVERSED, AND CAUSE REMANDED,