Wilson v. Barnett , 9 G. & J. 158 ( 1837 )

Dorsey, Judge,

delivered the opinion of the court.

We see nothing to disapprove of in the decision of the city court in the appellant’s Jw-si and second bills of exceptions. The inventory of the personal estate of the testatrix having shewn to the jury, that the appellant was in possession at the date thereof of sundry negroes, men, women and girls, the property of said estate, in the absence of all proof of their having been out of his possession, coupled with the presumption deducible from the order of the Orphans’ court, of Queen Anne’s county, that these negroes were still in his possession, the court very properly authorized the jury to charge the appellant, with hire or value of the services of the negroes, during the time they thus appeared to have been in his possession, and such hire was an appropriate item in estimating the personal assets of the deceased, exclusive of her negro property. If such hire was not received by her administrator, it was his duty to have shown by proof, an adequate excuse for his failure in not having done so. In fixing the hire or value of the services of the negroes in question, we can see no objection to the testimony offered by the petitioner in the appellant’s first bill of exceptions. The objection to it for vagueness and uncertainty, we think by no means sufficient to destroy its admissibility.

The refusal of the appellant’s prayer in the third bill of exceptions, and the instruction therein given to the jury meets our entire concurrence. The interest with which the appellant was chargeable, was a subject for the exclusive cognizance of the jury; the allowances claimed by him, and not sanctioned by the Orphans’ court, were matters on which the jury were to pass, the amount to be allowed for the hire of the negroes, was a subject over which they had exclusive jurisdiction. To have withdrawn all these questions from the consideration of the jury, as the court by the appellant’s prayer were called upon to do, would have been a most unwarrantable encroachment, upon the rights of that branch of our judicial system, to which is submitted the trial of all matters of fact. The ground most strongly urged against the claim of the petitioner, that her right to freedom, must depend upon the sufficiency of the personal assets of the deceased, at the moment of her death to pay all her debts, has nothing in reason or in law to support it. Had such estate at the death of the testatrix, been abundantly sufficient to pay all her debts, but in the due course of administration, and before the assent of the administrator, to the freedom of the petitioner, and without any default on his part, the estate other than the negroes, had by subsequent events become wholly inadequate to the payment of debts, the petitioner’s right to freedom would no longer have existed ; and if by events subsequent to the death of the testatrix, in the due course of administration, her estate at her death, greatly insufficient, should become sufficient, the right of the petitioner to her freedom could not be resisted. To be a sound rule it must work both ways.

Had the jury in their verdict disregarded either the law or the facts of the case, the city court was the tribunal from which redress should have been sought. There such an application was preferred but was overruled. Approving of their decision we feel no inclination, even if we had the power, to arrest the execution of what we believe to have been a most righteous verdict.

Concurring with the court below, in their refusal and instructions in all the. appellant’s bills of exceptions, we affirm their judgment.

JUDGMENT AFFIRMED.