Pierce v. John , 6 Md. 28 ( 1854 )

Eccleston, J.,

delivered the opinion of this court.

The first prayer granted by the court at the instance of the appellee is, that “if the jury believe from the evidence, that Rowles and wife received the said negro John from the executor of Richard Pierce, as a part of her residuary legacy under the will of Richard Pierce, and also received her distributive share of the whole of the said estate- of said testator, then it is not competent for said defendants to set up any title to the' said negro John, inconsistent with the title asserted by the testator in his last will and testament.” The court were wrong in giving this instruction, if for no other reason, because there is no evidence to-show that Rowles and his-wife received her distributive share of the whole of the estate of the testator. The administration- account, given in evidence by the appellee-, states the payment of the- legacy of $100, bequeathed to Mrs. Rowles; but the same account shows, that after deducting all the credits claimed, there stilt remained a balance due the estate, of $237.85. There is no evidence whatever; that Rowles and wife or either of them* ever received any part of this balance, or that it was necessary to' apply the same to any other legitimate purposes Their receipt, offered in evidence, refers to the negroes alone,, and the account shows this balance is exclusive of them.

The appellee’s second prayer is, “If the jury believe from' the evidence, that Rowles and wife have received the negro man John, under the will of Richard Pierce, from his executor, that they may infer that the title derived under the bill of sale had been relinquished by them.” This instruction the court gave, and in doing so we think they committed an error, for the reason that there is no evidence that Rowles and wife received the negro under the will. The receipt does not state the negroes were so received. And the will cannot justify any such inference, but on the contrary its provisions negative any claim in these parties to the negroes. They are all manumitted to be free at the testator’s decease. The will then gives Mrs. Rowles $100. It directs the residue of the personal estate to be sold ; that the proceeds after paying the $100, shall be equally divided between the testator’s son and daughter, Joseph Pierce and Mary Rowles. All, therefore, which Rowles and wife could claim or receive under the will, could be nothing more than the $100, and a moiety of the residue of the personalty, exclusive of the manumitted negroes. They surely constituted no part of the residue, directed to be sold and divided, because they were to be free at the decease of the testator.

The administration account, which is part of the petitioner’s proof, also seems to contradict the idea that the negroes were received under the will. The first item of disbursements speaks of the $ 100, as a “legacy left by deceased to Mary Rowles;” but when a credit is claimed in regard to the negroes, the language used is, “of current money, appraised value of six negroes, divided between representatives, as per receipt filed and recorded.” The parties supposed to be entitled are spoken of as representatives, and not as legatees; nor is the property called a legacy, or residuary bequest, or gift.

Looking to some of the authorities referred to by both parties, and considering the principle involved in the first prayer, granted at the instance of the appellee, we suppose the court refused the first and second prayers of the appellants, under the impression, that notwithstanding the title of Rowles and wife, under the bill of sale, yet as they had received a legacy under the will, the petitioner might be entitled to freedom according to the doctrine of election. But the principles established in Marriott vs. Sam Badger, 5 Md. Rep., 306, are opposed to the appellee’s right to freedom by election. There are not in the case before us, any facts, which can be considered as constituting an actual election, and nothing short of that can avail. Rowles and wife received the legacy it is true, but they also held and claimed the negro as a slave. They did not elect to take the legacy in lieu of the negroes, but determined to have both.

This matter of election is so much discussed in the case referred to, that we decline saying more on the subject at present.

In the absence of any right to freedom, according to the doctrine of election, we see no good reason why the first and second prayers of the appellants should not have been granted; and consequently we think the court did wrong in refusing them.

The fourth prayer of the appellants asks the court to instruct the jury, if the defendants received the petitioner from the executor, and executed the receipt offered in evidence, “that such receipt and acceptance is not evidence of an acknowledgment in a court of law upon their part, that the testator had the right to manumit said slave.”

Their receipt is given to the executor, as such, for one thousand and fifty dollars in negroes; which they acknowledge to be their “full and just share of negroes.” The names of the negroes, mentioned as received, are John, Priscilla and Mary.

Negro Aaron is named in the bill of sale and is appraised in the inventory, but is not mentioned in the receipt, and yet that paper acknowledges John, Priscilla and Mary, to be the full and just share of the negroes which Rowles and wife were entitled to receive. There is no more evidence to show that Aaron had been, since the bill of sale, sold or conveyed, by Rowles and wife, or either of them, to her father, than there is that the other negroes were so sold or conveyed. And as Aaron was not claimed at all, and the other three negroes were received of the executor, and acknowledged by the parties to be their full share, it cannot well be supposed they were claiming under the bill of sale. But the negroes having been appraised in the estate of Richard Pierce, and the receipt being for $1050, in negroes, and they stated to be the full and just share of Rowles and wdfe, are circumstances perfectly consistent with the theory, that those parties were claiming the negroes, as constituting a part of the estate of Richard Pierce. If the claim, had been made under the bill of sale, what necessity was there for saying any thing about the value of the negroes ? or why speak of them as being a share ? If they were the property of Mr. and Mrs. Rowles, in consequence of the bill of sale, they did not share them with any on,e. But considering the receipt as acknowledging satisfaction of a claim to negroes belonging to the estate of Richard Pierce, it was consistent with th.e nature, of the transaction to have the value inserted, and also to state that the negroes received were in full of the share to which the parties were entitled. And, under the circumstances, the acceptance and the receipt do furnish some evidence of an acknowledgment, that the petitioner belonged to the testator; and if so, they necessarily furnish some evidence of an acknowledgment, that he had the right to manumit him. The court were therefore right in refusing to give the instruction.

Having thus disposed of the case, we see no necessity for saying any thing in relation to the appellants’ third prayer.

The bill of exceptions taken by the appellee, is not before us, as there is no appeal on his part.

We reverse upon the appellee’s first and second prayers, and also upon the appellants’ first and second prayers, and affirm on their fourth.

Judgment reversed and procedendo awarded.