Nash v. Smallwood , 6 Md. 394 ( 1854 )

Tuck, J.,

delivered the opinion of this court.

It appears that general legacies were left to the appellants, and specific legacies to the appellees and others. It required all the property, except the specific legacies, to pay debts and costs of administration. The appellants filed a petition in the orphans court, praying that the executor might be required to sell the property bequeathed to the appellees, and divide the proceeds, pro rata, among all the legatees. This the court refused, but directed the executor to deliver the property to the appellees, the legatees for life»

We do not perceive any reason for not applying to the dispositions of this will, the well settled principle of abatement, and refunding among legatees, by which specific legatees are preferred over those claiming by general bequests. Ward on Legacies, 370. Chase vs. Loockerman, 11 Gill & Johns., 185. Cornish vs. Wilson, 6 Gill, 301. The property given to the appellee and some others of the legatees, consists of negroes, designated by name. We cannot imagine a more certain description. The bequests to the appellants are not so designated, as to belong to the class of demonstrative legacies. The difference between negroes given by name and general pecuniary legacies, is too obvious to need further remark. If such a sale and distribution were proper, it is supposed that a court of equity would be the appropriate tribunal, where all parties in interest might be represented.

The propositions argued by the appellants’ counsel under the second, third and fourth points, are not necessarily before us on this appeal; but we feel no difficulty in saying that this part of the case would be governed by Evans vs. Iglehart, 6 Gill & Johns., 171. This case is very different from Hanson vs. Brawner, 2 Md., 90. See also Stevens vs. Gordy, 9 Gill, 405.

Order affirmed with costs.