Smith v. Smith , 7 Md. 55 ( 1854 )

Le Grand, C. J.,

delivered the opinion of this court.

George Smith, among other things, devised as follows:

“Item.—It is further my will, that my son, David, is la famish to my wife, as aforesaid, the one-third of all the wheat and corn which he may raise on my farm during the lifetime of my wife, aforesaid, the same to be delivered to her in such manner as she may direct; and it is further my will, that my son, David, as aforesaid, shall also deliver to my oaid wife, from the farm, ns much hay and firewood as she may want for her own use during her natural life.

“Item.—It is my will, and I hereby bequeath to my son David, my farm in Washington county, near the town of Sharpsburg, and on which- my said son David now resides, to him and his heirs forever, subject, however, to the following provisions, to wit: The one-third of the wheat and corn, hay and firewood, which is to be furnished to his mother during her life, is all the rent he is to pay for the same during that period; and at. the death of my wife, my said son David is to pay for the aforesaid farm the sum of three thousand, fiv© hundred dollars, in yearly payments of five hundred dollars, without interest, which is to be equally divided among my six children, or their legal representatives, share and share alike.”

The testator died in the year 1834, and his widow in the month of June 1852.

The appellants, who are the legal representatives of Nancy Smith, filed their petition in the orphans court against the appellee, charging him with having failed to account for a note of $200, and interest thereon, due from him to the said Nancy and unpaid at the time of her death; and also, that she had never received, up to the time of her death, the one-third part of the wheat and corn raised on the farm by the appellee, or any part thereof, or any satisfaction or payment of the same. It also alleges, that he had settled two accounts, and in neither of which had he charged himself with the value of the one-third of the said wheat and corn, nor with the said $200 and-interest, and praying that said accounts may be opened and re - stated, and errors therein corrected; and that he might be compelled to charge himself with the amount of wheat and corn not furnished by him to his mother, the intestate; and with the $200 and interest; and also, for further and other relief.

The orphans court disallowed so much of the prayer of the petitioners as related to the opening of the accounts, and the wheat and corn; but allowed so much of it as applied to the $200. The appellants appealed from the order of the court; the appellee did not, and this puts out of view so much of the order of the court as has reference to the $200, there being no appeal from it.

In reply to the petition of the appellants, the appellee claims to have fully satisfied all demands of his deceased mother against him. With regard to the one-third part of the wheat and corn raised on the farm, the answer of the appellee substantially states, that after the death of the father, and as a preliminary to his consenting to take said farm under the devise, situated as it was, it was agreed between him and his mother, that inasmuch as the farm needed large repairs, he should make all such repairs and pay all taxes himself, and that in consideration of these, she would not require him to pay the full third of the said wheat and corn, but in addition to the hay and firewood, she would be content with only so much of said wheat and corn, annually, as she might need for her purposes; and that with this understanding and agreement, he took possession and faithfully delivered to his mother whatever she required for the support of herself and family. The evidence is abundant to show he much improved the place by adding to the old, and by the erection of new buildings; but there is no proof whatever to show this was done under an express agreement between him and his mother. This being the state of the case, it is wholly unimportant to inquire, whether the agreement set up in the answer of the appellee, if fully proven, would have been sufficient to exonerate him from the liability imposed by the will of his father? The only testimony which can in any sense be regarded as reflecting light upon the understanding, if any, between the mother and son, is that of Mrs. Russell. She does not profess to have any knowledge of any contract, but merely of the delivery of corn, &c., every year by the son to the mother, and that Mrs. Smith told her she got her bread, corn, wood, cow-pasture and apples from the farm, and that was all she asked. This, surely, is not .sufficient to relieve the son from the obligation he assumed when he undertook to discharge the trust created by the will of his father in behalf of his mother.

Mrs. Russell does not say in any part of her evidence that Mrs. Smith at any time declared she bad released her son, or that she had made a contract with him, by which, if he added to the buildings on the place, and furnished her with what she wished for her family, he was to be discharged from the remainder of the obligation devolved on him. Her testimony only goes to the extent, that Mrs. Smith said she got what “she askedfor.” It may be well conceived, that a creditor may be indulgent without meaning thereby to release his claim against his debtor, and especially so in the case where a mother is the creditor and a child the debtor.

Where a claim is as well defined as is the one in this case, the evidence ought to be clear of its surrender, and not gathered from conjecture or equivocal expressions such as those testified to by Mrs. Russell. Looking to the testimony, we cannot see that the understanding and agreement averred by appellee are sustained, and therefore, in this particular, we dissent from the conclusion arrived at by the orphans court. It may not, however, be improper to remark, that it is by no means a strained conjecture to suppose, that parties, standing in the tender and close relation of mother and son, would manage their business with less observance of the formalities of business than would be the case in transactions between strangers, and such a circumstance ought not to be without its due weight in the ascertainment of the state of accounts between them. It is possible that in this very case there was an arrangement between the parties which would, could it be proven, discharge the appellee from all responsibility to the estate of his mother; nor is it improbable the failure to produce the evidence is owing to the confidence mutually subsisting between mother and child, which prevented its assuming the form required by the law. If such be the case, as much as it may be regretted, nevertheless it cannot be remedied by the courts. They can only regard cases as they appear by the evidence. If parties, from auy cause, have failed to perpetuate the evidence of their transactions, they must bear the consequences of their indifference to their interests.

The case of Crawford vs. Severson, 5 Gill, 443, and the case of Greenwood vs. Greenwood, 5 Md. Rep., 336, show, that the rent reserved to Mrs. Smith is a charge on the land devised to the son, and also, that the statute of limitations is no bar to the claim. It is true, that in both the cases referred to, the proceeding was in equity to affect the thing—-a proceeding in rem. This can make no difference so far as the case now before us is concerned. Had any one but the appellee administered on the estate of his mother, such other person could have filed his bill in equity to charge the land for the amount due to his intestate, and in that case the appellee could not have defeated the claim by the plea of limitations. The cases we have cited are full to this point,- and it would be strange if the debtor, by administering on the estate of his creditor, could deprive the estate of what is justly due to it. We think, therefore, the statute unavailing in this proceeding.

We see no error in the accounts which have already been passed by the appellee, and therefore no cause why they should be opened. Instead, therefore, of these accounts being opened as asked by the appellants, the appellee should- file another account, charging himself with the amount due to the estate of his intestate. To get at this amount, testimony should be taken and the appellee allowed, by way of credit, the value of all he furnished his mother. So much of the order of the orphans court as is appealed from will be reversed, and the cause remanded for further proceedings, in conformity with these views.

Order reversed and cause remanded

for further proceedings.