Smith v. Smith , 6 Md. 496 ( 1854 )

Le Grand, C. J.,

delivered the opinion of this court.

This is an appeal from the orphans court for Washington county.

It appears that George Smith departed this life in the month of March, in the year 1834, leaving a will, in which, among other things, is the following: “It is my will that my negro girl Maria, be retained by my wife until she arrives at the age of thirty-five, which will be in October 1858; and should it so happen that my wife should die before that period, that then and in that case my son shall take her himself, and have her time for the term of her service valued, and account therefor as he has to do as executor.” Mrs. Smith, the wife of the testator, died in June 1852, and letters of administration were granted on her estate to the appellee. About two years after the death of his intestate, he, as executor of his father, settled an account, in which he omitted to charge himself with the value of the services of the negro woman, from the death of his intestate up to the lime when she would be entitled to her freedom. The object of the petition in ibis cause, was to compel him to so account and charge himself.

The appellee admits all the principal allegations of the petition, hut claims exemption from all liability, because, as be alleges, his intestate during her life, sold the girl for the term prescribed in the will of her husband for the sum of $275, and that the person to whom she was so sold, afterwards sold her beyond the limits of the State of Maryland; and he further avers that she was so sold, “with the knowledge of all the children of the said Nancy Smith,” the testator’s widow.

Under the will of George Smith, his widow was entitled to the services of the girl daring her life, if she should die before the girl attained the age of thirty-five years, and she had, therefore, a clear right to sell the girl for the term; the right of the purchaser to cease whenever Mrs. Smith should die, or the girl attain the age of thirty-five. This right of disposition — her husband’s estate being solvent — was only limited by the legislation of the State, prohibiting the sale of a slave, for a term of years, beyond its limits. The purchaser could not defeat the right of the estate of George Smith, to the value of the services of the girl from the time of the death of Mrs. Smith up to October 1858: he could only purchase the interest of Mrs. Smith, which necessarily terminated with her life. At her death, her estate was liable to the estate of her husband, for the delivery of the girl for the benefit of his heirs and distributees. It was the duty of the executor of George Smith, to recover this claim, but this he failed to do. Had any one other than himself been the administrator on the estate of his mother, in all probability the claim would have been preferred and allowed. He admits he has in his hands, belonging to the estate of his intestate, a considerable sum undisposed of, and we think, out of it ought to be allowed the value of the services of the negro from the death of Mrs. Smith to October 1858. Of course this allowance should be made in subordination to claims having legal priority, if any such there are. If he charges himself, in his accounting as executor of his father, with the value of the services of the girl, he will be allowed by the same court the amount in his accounting as administrator of his mother.

The answer of the appellee states, the sale was made to one Daniel Schnebly, but the memorandum of sale offered in evidence, shows the sale to have been made to one William D. McKinstry. There was a question made in the argument as to the admissibility of this evidence. It is not necessary in the view we have taken of the case, that- we should decide it, and we only advert to it for the purpose of expressing our condemnation of the contrivance, by whoever made, to deprive a helpless negress of the freedom to which she was entitled by her master’s will. Such conduct was not only a gross fraud, but ought to be visited with the severest penalties of the criminal law.

Order reversed and cause remanded for farther proceedings.