Gibbons v. Riley , 7 Gill 82 ( 1848 )

Spence, J.,

delivered the opinion of this court.

In Maryland, the trust confided to an executor, is clearly set forth and defined by his letters testamentary, which is the commission under which he acts: “administration of all the goods, chattels and credits, of the deceased, is hereby granted and committed unto,” dec.

The áct of Assembly of 1708, ch-101, and the supplements thereto, prescribe the mode in detail in which this trust is to be performed.

For the discharge of this trust, his official oath and bond each make him responsible.

The 20th section of the 8th sub chapter, provides, “that the bare naming of an executor in a will, shall not operate to extinguish any just claim which the deceased had against him, but it shall be the duty of every such executor accepting the trust, to give in such claim in the list of debts. The second section of the same sub chapter, provides, “that the orphans court granting the letters, shall have power to make allowance to any collector, executor or administrator, for property of the deceased which hath perished or been lost, without the fault of the party; and no profit shall be made, and no loss shall be sustained, by an executor or administrator, in the increase or decrease of the estate under his management, but the executor, or administrator, shall return an inventory and account for such increase, and may be allowed for such decrease, on the settlement of the final or other account.”

The 12th section of the 14th sub chapter of the act of 1798, provides, “that any executor or administrator shall be entitled to appoint a meeting of the creditors, or of persons entitled to distributive shares or legacies, or a residue, on some day, by the court approved, and passage of claims, payment or distribution may be there made, under the court’s direction and control. i'

The 9th section of the same sub chapter, is in the following language: “Forasmuch as it is the intent of the law now in force, as well as this act, that executors and administrators should suffer no loss from the decrease of the estate, and make no gain from the increase, and that, when necessary for paying debts, a sale shall take place, and the said executor or administrator be accountable for the amount of the sales,” <fcc.

It is our opinion, that the provisions of the act of 1798, ch. 101, and the uniform practice in this State, even before the passage of that act of making executors responsible for any portion of their testator’s estate, not disposed of by their wills, and requiring them to make distribution thereof among the legal representatives of their testator, is conclusive against the executor’s claim in this case. Vide Dep. Com. Guide, p. 50.

There is no evidence in this cause, that the negro man Henry, was owned and held by the testatrix, and Mary, her sister, now the wife of this executor, in joint tenancy. The admission in the answer, that Marika and Mary jointly purchased the negro man Henry, does not prove that, they were joint tenants. The presumption is, that each of them paid one-half of the purchase money for the negro, and were tenants in common thereof.

The executor is not entitled to the half of Henry, as executor, or in right of his wife’s survivorship. The decree of the orphans court is affirmed, with costs, and the cause remanded to the orphans court for such proceedings as the case may require.

decree affirmed, with costs, AND CAUSE REMANDED.