Duncans in Baltimore Co. MD Court Records Part 2


Duncan research files of
Mary Ann (Duncan) Dobson
the Genealogy Bug

Last revised March 26, 2004


"Reports of cases argued and determined in the Court of Appeals of Maryland" by Richard W. Gill, Vol.IV, containing cases in 1846; Vol.4, pgs.72 to 86 (California State Law Library, Sacramento, 1/2004)
      DAVID T. McKIM and WILLIAM H. MARRIOTT, Executors of JOHN McKIM, JR., vs. J. M. DUNCAN, et. al; Court of Appeals of Maryland; 4 Gill 72; June, 1846, Decided.
      Appeal from the Orphans Court of Baltimore county.
      On the 15th March 1845, the appellees filed their petition before the said court, alleging, that on the 8th December 1841, John McKim, Jr., made his last will; that he appointed his sons, D. T. and John S., and his son-in-law, W. H. M., executors thereof, and therein declared, that no one of his executors should be entitled to any commissions for settling his estate; that the testator died in the month of January 1842; that his son, John S., renounced his appointment, and on 3rd February 1842, letters testamentary were granted to the appellants; that the executors settled three accounts with the said court, and claimed, and were allowed, in their third account, commissions to amount of $9418.57. And in their fourth account, $81.33; that the allowance of commissions to the executors being without notice to the appellees, they agreed to open the same, vacate the decree therefor, and that the subject matter of their claim thereto, might be again considered by the court. The petition then proceeded to set forth the interest of the appellees under the will, and the diminution of their devises by the allowance of commissions to the executors. The petition further alleged, that as to a sum of $99,025.88, the same never was received into possession by the executors; that the interest of the testator in a copper establishment, was one in property, credits, and effects, which the testator, at the date of his will, and at the time of his decease, held or was entitled to, in partnership with his two sons, David T. and John S.; that the same was charged to the executors in their first account, and in their second account the said charge was extinguished, by a credit for the whole amount. -- And that the same, when charged in their third account, was in the same account credited in discharge; the only effect of the introduction of this item into the said third account, being, as respects your petitioners, to diminish the residue of the estate by an allowance of six per cent. commissions thereon; and that as respects the warehouse, charged and credited at $7000, in said third account, and also in respect of the two hundred and sixty-five shares, Phoenix Shot Tower stock, charged and credited in said third account, at $15,900;-- the only effect of the introduction of these items into said account, was to increase the allowance of commissions to said executors; that in respect of the sum of $6000, charged on the dwelling house and property in Holliday street, no commission, in any point of view, ought to be allowed. Prayer, for a settlement of a further account, &c.
      The executors answered separately.
      David T. McKim's answer claimed commissions, admitted that the question was still open, and among other matters alleged, that with regard to the capital of John McKim, Jr., & Sons, credited in the account of the executors, and on which commissions were charged, the same was the entire property of John McKim, Jr., for which he annually was credited with interest. He alleged he would not have taken out letters testamentary, but for the opinion of the judges of the court, expressed before he took them out, that he would be entitled to commissions.
      The answer of W. H. Marriott, also claimed commissions;-- that he believes it was understood by all the representatives, before he took out letters, that commissions were to be allowed the executors; that he refused to undertake it, unless he was to be paid. The passage of the administration accounts, and allowance for commissions were admitted. That as to the item of $99,025.88, this respondent is advised, that the same is properly made liable to the commissions allowed by the said court, and stated in said accounts, because the same was a debt due to the estate of said testator, by said David T. McKim, and his brother, John S. McKim, the same having been loaned to them by the testator, who had no interest in the business in which the same was used, and for which it was loaned by him to his said sons not as a partner, but only as a friend and creditor.
      With this answer was filed a letter from J. M. Duncan, one of the appellants, dated 11th May 1843, to said Mariott, which stated:
      "I have not seen Mr. Handy, since the time I mentioned to you, that we met on the street; nor have I said to him anything on the subject of executor's fees, either pro or con. I had supposed that the commissions were to be charged by you, having expressed my opinion, that you were fairly entitled to a remuneration for your labor, and believed that a paper had been drawn up and signed by the members of the family, coinciding with that opinion. Have you not such a paper duly signed? My impression was, that you possessed this paper, and therefore I feel surprised by your note, which seems to imply that you have it not."
      And also a declaration in writing, signed by said W. H. M., filed in court, setting forth, "that in accepting and qualifying for the execution of said trust, he reserves to himself the right to demand and receive, such commissions as the orphans court of Baltimore county may, in its discretion, allow."
      The appellees filed a general replication to the answers.
      A commission was issued, and there was proof, that John McKim, Jr., was not interested in the copper works, from the year 1839; that he received nothing from that concern after that period, but interest on his capital engaged in it.
      A deed of mortgage from D. T. McKim to his father J. McK., Jr., dated 1st May 1840, to secure the sum of $6900, was also filed in the cause.
      A variety of accounts, taken from the books of the deceased, with his several children, were also proved.
      By the last will and testament of the deceased, dated 8th December 1841, he bequeathed to his three sons, David T., John S., and Richard, to be equally divided between them, "the whole of my capital used in the copper business, that may be standing to my credit, after the payment of all debts and claims upon, or growing out of that business;" and also the warehouse, in which that business was carried on.
      The testator bequeathed to his son David, his dwelling house, "which, however, I charge with the payment of the sum of $6000, to constitute a part of the residuum of his estate:" his son to pay interest thereon.
      He also bequeathed to his said son, two hundred and sixty-five shares of Phoenix Shot Tower stock, "heretofore transferred to me as collateral security, by him."
      After various other devises to his children, and in trust for his grand-children, he devised a residuum of his estate, created from various specified sources, to amount of $60,608, in trust, for his three daughters, for life, with remainders over; and all the residue of his estate to his six children, share and share alike.
      The testator then declared, that neither of his said executors should be entitled to any commissions for settling his said estate, but all necessary expenses relative to such settlement, should be charged to his estate.
      By a codicil, dated 10th December 1841, the testator revoked the devise of that portion of his estate, which he had bequeathed to his son David; and again devised the same to him in trust, for the sole use of his wife, &c., with power to sell, mortgage, &c., with remainder in trust for such of the child or children of the said David, or their descendants, as the said David may direct by, &c.
      The Shot Tower stock was included, and valued in the inventory of the estate, at $60 per share; as were also all the stocks which the testator devised in trust for his grand-children.
      The schedule of sperate and desperate debts, amounted to $123,117.74; of which D. T. McK, was alleged to be chargeable with $6000. The capital in the copper company, $99,025.85.
      In the first account of the executors, they charged themselves--
      With an inventory of the personal estate of the deceased, $44,959.51. This included the Shot Tower stock.
      With a debt of D. T. McKim, for amount due by him to the deceased, $6000.
      With the amount of the deceased's interest in the firm of John McKim, Jr., & Sons, as returned in the lists of debts, $99,025.85.
      In their second account, they were credited with the item of $99,025.85, as prematurely, and erroneously brought on; the firm not being, as yet, settled.
      In their third account, the last item was restored, and the executors were allowed commissions on $156,976.22, at 6 per cent., $9418.57. There were allowed, also, a credit of $15,900, for two hundred and sixty-five shares Phoenix Shot Tower stock, which was bequeathed to David T. McKim, in trust, &c.
      The executors, from time to time, passed four other accounts.
      After the agreement to open the accounts upon the subject of commissions, and that the orphans court might reconsider that subject, de novo.
      That court, on the 15th March 1845, (KEMP, LEARY, and READEL, J.,) decreed that neither of the executors should be entitled to any commissions, and that the court have no power under the will, to award the same; and that the executors further account, and charge themselves with the commissions credited in the accounts heretofore passed, &c.
      From that decree the executors appealed to this court.
      It was agreed, that upon this appeal the mortgage from D. T. McK., and J. McK., Jr., should not be considered as a ground of claim against him.
      COUNSEL: By MCMAHON and REVERDY JOHNSON for the appellants:
      This is an appeal from a decree of the orphans court of Baltimore county, by which all commissions were disallowed the executors of John McKim, Jr., deceased.
      The facts of the case are as follows:--
      The late John McKim, Jr., departed this life, leaving a considerable property, both real and personal. By his last will he appointed his sons, David and John, and his son-in-law, Marriott, his executors, and by that will he directed, that they should charge no commission for settling the estate; but that his estate should pay the necessary expenses. By this will he gives no bequest, whatever, to Marriott; and none to David, except in trust for his wife and children; but to John, a large bequest and devise are made. John renounced the executors of the will, and Marriott and David, after a probate filed with the orphans court, against the clause of the will prohibiting the charge of commission, took out letters testamentary upon said estate;-- and before letters granted, the orphans court telling them, that commissions would be allowed, notwithstanding this clause in the will.
      The executors settled three accounts, and the, then, orphans court, allowed them six per cent. commission, for their services in settling up the estate.
      After such allowance made, some of the legatees of John McKim, Jr., filed a petition, requiring the court to disallow all commissions; and if the court will not do so, to disallow commissions on certain items in the accounts of the executors. They, the executors, assenting to consider such allowances, as open for the consideration and judgment of the orphans court. One item, was a commission on the interest of the deceased in the copper works, in which Mr. McKim permitted his name to be used as a partner, and into which he had put a large capital, without any participation in the profits; and merely obtaining interest on the principal, so lent to such copper works, and which he bequeathed by his will. The legatees of such fund having received the amount of such bequest, gave release therefor.
      There are also objections made to other items of credit for commissions.
      The present orphans court disallowed every allowance for commissions, and from that judgment this appeal is taken.
      The appellants will contend:
      1. That the orphans court are authorised and required, under circumstances similar to the present, to allow commissions to executors, although by the will appointing them executors, the testator directs none to be charged.
      2. That the various allowances of commissions, as made by the former orphans court, were correct and proper, and that upon the facts and circumstances stated in the case, they ought not to have been disturbed by the present orphans court.
      By S. J. K. HANDY and NELSON for the appellees, who insisted:--
      1st. The authority to make a last will and testament of personal property, and to appoint an executor, is, by the common law of England, in force at the time of the settlement of Maryland, imported by our ancestors, incorporated into, and made a part of the laws of the State, and is not in virtue of any act of Assembly; that executors and administrators, at common law are entitled to nothing, by way of compensation or commissions; that each testator, at common law, has the right to debar his executors from receiving commissions, the office of executor being one of private trust named by the testator, and not by the law.
      2nd. There is a defect of authority in the several orphans courts, by act of Assembly, to allow commissions to executors against the declared intention of the testator, that his executors shall act without compensation or commissions; that the sound and true construction of the several acts of Assembly will exclude this case, as not within the meaning and intention of the legislature, leaving it to be governed as at common law; that the legislature intended, by the 5th sec., 14th sub. chap., of the Act of 1798, chap. 101, to embrace the case only, where testators desiring, and intending to compensate, give something by way of compensation, but give, in the opinion of the orphans courts, an insufficient compensation, repealing the law, pro tanto, as it existed prior to said act of Assembly:-- this case comes not within the letter, nor within the meaning and the intention of said fifth section; nor is it embraced within the meaning and the intention, of the 2nd sec., 10th sub. chap., of the Act of 1798, chap. 101.
      3rd. From the pleadings and the evidence in the cause, it appears, that the executors made no contract or agreement with the residuary legatees of their testator, to entitle them to an allowance of commissions against the prohibition of the will; but on the contrary, the executors took out letters, with the full understanding, that the residuary legatees refused to make any such agreement; that the appellants having voluntarily assumed the trust reposed in them by the testator, are bound to take the office of executor, with the condition imposed by the will, the testator intending, by excluding the allowance of commissions, that what would be allowed as such, without this inhibition, should fall into, and make a part of the residuum of his estate, made liable and charged by the will, to make up any deficiency in the legacies given to his daughters; that the sales of the real estate are inadequate to make up the legacies given to his daughters; which makes a resort necessary, under the will, to the residue; and if commissions are allowed, the residue will be much exhausted, and the intention of the testator will be defeated, as respects his daughters; which intention ought to prevail.
      4th. The appellants being members of the testator's family, he made them large advances from time to time, incurred responsibilities, and paid debts and liabilities for them, to a large amount; and shortly previous to his death, relinquished and cancelled valid debts due by each of them to him, which would otherwise have made part of the personal estate; the testator nominated and appointed them, the executors of his last will, with the belief, and the full understanding, that they would perform the trust reposed in them by the will, on the terms specified, to which appointment they did not object in his lifetime, although they had knowledge of such appointment, at or about the time of making said will; and more especially, as both executors take beneficially by the will, they are bound by its terms and provisions, and ex aequo et bono, are not entitled to claim commissions, they having contracted and agreed to act without commissions, by the acceptance of the office of executors, under and by virtue of the will.
      5th. The codicil to this last will and testament, made two days after the will, as disclosed by the evidence in the cause, is in the handwriting of David T. McKim, one of the executors and legatees, and was signed and attested at the instance, and at the request of said executor and legatee, and it is not competent for said executor and legatee now to set up the defence, that he takes nothing by the will, even if the fact were so, but he is estopped and precluded from objecting to the codicil of said will, and is as much bound to act without commissions as executor, as if the codicil had not been made.
      6th. David T. McKim waived all claim to commissions anterior to taking out letters testamentary on his father's estate; he also refused to make any agreement to allow commissions to his co-executor, Wm. H. Marriott, and therefore, in no aspect of this case, can he rightfully and legally claim the allowance of commissions; and as both executors entered on the performance of the trust reposed in them by the will, with full knowledge of the opposition to have commissions allowed contrary to the intention of the testator, and of the conditions annexed to the trust, they have no right to complain, and that both executors, under all the circumstances surrounding this case, ought to have no allowance of commissions made them by the orphans court, against the general, and the particular intent of the will.
      7th. The claim made by said David, independently of his waiver of claim to commissions, is inadmissible, inasmuch as the evidence in the cause offered by the executors, discloses the facts, that he, David T. McKim, has elected to take the legacies and benefits given him by his father's will and codicil; and has assumed the trusts, for the grand-children, created by the will, and also the peculiar and special trust created by the codicil, and therefore he is bound to give effect to the whole will, and is not entitled to commissions.
      8th. That under no aspect of this case, ought the executors to be allowed commissions on the sum of $99,025.88, returned by them as a debt due to the separate estate of the testator, by David T. McKim, and John S. McKim, the surviving partners of John McKim, Jr., & Sons, and charged and credited as such, in their first, second, and third accounts, because by the death of Mr. McKim, the senior partner, the whole partnership property and business, devolved by law on his surviving partners, whose duty it was, as surviving partners, to settle up the said copartnership business; that the appointment of David, as one of the executors, he being a copartner, does not entitle him to claim commissions out of the separate estate of his testator, for winding up the copartnership business after his father's death, nor is his co-executor, Marriott, entitled to claim commissions on this item; nor ought commissions to be allowed on the sum of $15,900, the value of two hundred and sixty-five shares of Phoenix Shot Tower stock, given and released by the will to David, it having been held by the testator as collateral security only, at the time of his death; nor ought any commissions to be allowed on $6000, a debt charged on the dwelling house devised to David, and returned by executors, as a debt due by said D. T. McKim, as executor.
      9th. Commissions ought not to be allowed the executors on the sum and item of $99,025.85, returned by them in their list of debts, as "the amount of capital of late John McKim, Jr., in copper company, due by David T. McKim and John S. McKim, surviving partners of John McKim, Jr., & Sons;" and charged by executors in their first administration account, as "being the amount of deceased's interest in the firm of John McKim, Jr., & Sons, as returned in their lists of debts due the deceased," and which item and sum of money was extinguished by a credit and allowance in their second administration account; the executors alleging in said account, that they had "prematurely and erroneously charged themselves with said item in their last account, the firm of John McKim, Jr., & Sons, not being settled up;"-- and which item was again charged and credited in their third account: because the evidence shows, that the executors never reduced said item and sum of money, or any part thereof, into their possession as executors, nor was the same ever paid over to them as executors, by the surviving partners of John McKim, Jr., & Sons; but on the contrary, the said business and firm was conducted after the death of John McKim, Jr., by his surviving partners, who wound up the said business and firm, paid the debts of said copartnership, and divided the profits and capital of said copartnership business amongst themselves. And commissions ought not to be allowed on the sum of $7000, the appraised value of warehouse at the corner of Frederick and Pratt streets, where the copper business was conducted by John McKim, Jr., & Sons.
      JUDGES: The cause was argued before ARCHER, C. J., DORSEY, CHAMBERS, SPENCE, MAGRUDER and MARTIN, J.
      MAGRUDER, J., delivered the opinion of this court.
      The will of the late John McKim, junior, gives rise to this controversy, and the first and principal question is, are the persons to whom letters testamentary were granted, and who have administered the assets, entitled to receive any remuneration for the services they have rendered?
      It will be assumed in this case, that if our act of Assembly of 1798, ch. 101, does not expressly grant to the orphans court, the power to allow to the executors of Mr. McKim a commission for their services, no commission can be claimed by them. But surely a law, which, in prescribing the manner in which the account of an executor must be made out, has these words: "His commission, which shall be, (at the discretion of the court,) not under five per cent., nor exceeding ten per cent., on the amount of the inventory or inventories, excluding what is lost or has perished," confers upon the orphans court the power in this, as it does in all other cases, to allow a commission. The question then is, can the testator take from the court the power which the law gives to it, and which is conferred in language, which makes it their duty to allow not less than five per centum?
      The will of Mr. McKim, in one of its clauses, appoints David T. McKim, John S. McKim, and William H. Marriott, the executors; and afterwards it is added: "I do hereby declare it as my will and intention, that neither of my said executors shall be entitled to any commissions for settling my estate, but all necessary expenses relative to such settlement, shall be charged to my estate." John declined, the others obtained letters testamentary, and now claim the commission. Is the above clause in the will a bar to the claim?
      It must be conceded, that the act of Assembly no where gives to a testator the power which this testator attempted to exercise. It is true, that the will of the testator is to be regarded in the administration of his estate, but this general rule is to be taken with this proviso, that such will be not inconsistent with the law. That this provision of the will is inconsistent with the law, must be obvious upon an examination of the act of 1798, especially if the 2nd sect. of sub. chap. 20, be read in connection with the 5th sect. of sub. ch. 14. The first clause makes it the duty of the court, in all cases, to make an allowance; the other makes one single exception, and this case cannot be brought within that exception. To defeat a claim founded upon sub. ch. 20, sect. 2, because of this clause in the will, there must be found a law which gives to the testator a power to repeal the act of 1798, so far as it directs the manner in which the accounts to be passed by his executors are to be made out; a law which directs the commission to be allowed, unless the testator shall otherwise direct. The testator is not permitted to deprive his executor of a commission of not less than five per centum, even by bequeathing to him, "by way of compensation," any thing which shall appear to the court to be insufficient compensation. Surely, if he cannot take from the court its power to allow the executor ten per centum upon the amount of the inventory, by giving to him a less sum than the law authorizes the court to allow, and which the court believes to be sufficient, he cannot, by forbidding any allowance whatever to be made, deprive the court of the power which the law says it shall exercise in all cases, with but one exception, and that exception not embracing this case. The court may allow more, although the will gives eight per centum, (thus disregarding such a provision in the will.) Surely its power is not to be taken away by a clause of the will, which allows to the executor nothing.
      A person, by undertaking the office of executor, does not elect, and is not bound to give effect to all the provisions to be found in the will. Such clauses as are inconsistent with the law which the executor is to obey, are of no validity, and constitute no part of the will.
      It is not believed, that the record furnishes testimony, that the executors agreed to release any commission to which the law might entitle them. The agreement spoken of might not have been executed, because, after the opinion expressed by the court, or one of its judges, it was not deemed of importance to obtain an agreement, in regard to the executor's commission, on an estate in which three married ladies were principally interested. Indeed, one of the executors seems to have taken quite unreasonable pains, to let it be distinctly understood by all who are concerned in the estate, that he had a will in regard to the commission, inconsistent with that of the testator, and that the law should settle the question between them.
      The opinion of this court then is, that in this case, and notwithstanding the provision of the will, the executors were entitled to the commission which had been previously allowed to them.
      The petition filed by the appellees, besides insisting that no commission was to be allowed to the executors, also charges, that commissions had been improperly allowed upon particular sums of money. Upon these questions, the court below could express no opinion, because, in its judgment, it had no legal power to make any allowance when the will forbids it. Differing in opinion with the court below on this question, it is our duty to direct what shall be the decree in the premises.
      The first objection is, to commission allowed on a sum of money returned by the executors as a debt, due the deceased by David T. McKim and John S. McKim, surviving partners of John McKim, junior. It can make no difference, in deciding this question, whether the testator was a partner of the firm, or accommodated that firm, of which he was not a member, with a loan of so much money. The money was unquestionably a part of his personal estate, payable only to the executors, and when paid to them, constituted a part of the assets in their hands to be by them accounted for in their settlements in the orphans court. The testator could not, by his will, prevent the executors from collecting and accounting for this portion of his estate, or authorize any other person to receive it from the debtors.
      It can be no objection, to the commission allowed on the appraised value of two hundred and sixty-five shares of Phoenix shot tower stock, that it was transferred to testator by one of the executors, "as collateral security." While the executors are charged with the appraised value of this stock, it must be regarded as a part of his estate. It cannot be regarded as the stock of its former owner, although we are not told when or how the testator became the absolute owner of it.
      We are of the opinion, then, that the executors were rightfully allowed a commission on these two sums of money.
      We are also of opinion, with respect to the $6000, that they are not assets, upon which a commission is to be allowed by the orphans court.

"Reports of cases argued and determined in the Court of Appeals of Maryland" by Richard W. Gill, completed by Oliver Miller, Esq., Vol.VIII, containing cases in 1849; Vol.8, pgs.31 to 41 (California State Law Library, Sacramento, 1/2004)
      WILLIAM H. MARRIOTT, Surviving Executor of JOHN McKIM, JR., vs. SAMUEL J.K. HANDY and Wife, and JOHN M. DUNCAN and Wife; Court of Appeals of Maryland; 8 Gill 31; June, 1849, Decided.
      Appeal from the Orphans court of Baltimore county.
      This case originated in a petition filed in said orphans court, on the 22nd of July, 1846, by the appellees, Handy and others, as legatees and persons interested in the settlement of the personal estate of John McKim, Jr., against the executors on said estate, Marriott (the appellant,) and David J. McKim, now deceased. This petition alleged debts to be due the estate by both of said executors, which had not been returned by them; that the debt due by the said David, was a mortgage executed by him to his said testator, on the 1st of May, 1840, conveying certain household effects, &c., to secure the sum therein mentioned, of $6,900, as the rent of a dwelling house of the said testator, occupied by his said son David, and praying for a return of an additional inventory and list of debts, and for the passage of a final account by said executors. It also states that said executors intend relying upon a receipt of the said testator as a discharge of the mortgage, which, it avers, cannot discharge a debt evidenced by a sealed instrument.
      The answer of the said David, admitted the execution of said mortgage, yet wholly denied that any debt was now due thereby, from him to the testator, and averring that nothing had been due on it, he exhibited and relied on a receipt in full for the said mortgage claim executed by said testator, as a bar to said claim, and a full justification for the non-return of said debt. The answer of Marriott, the co-executor, did not admit the existence of the alleged debt, and founded his denial upon the declaration of the testator in his life time, that his said son David owed him nothing upon said mortgage claim; and also upon his own personal knowledge that the said receipt in full for said claim, executed by said testator to the said David, was made and executed at the instance and direction of the said testator, to discharge any claim that might appear to be due by said mortgage.
      The petitioners then prayed that three issues might be sent to Baltimore county court for trial. The 1st related to the execution of the mortgage; 2nd, whether the mortgage had been released in due form of law; and 3rd, whether the money due by it had been paid to the testator in his life time. The executor, the said David, also prayed an issue on the single question, whether there was, at the death of the said J. McKim, any debt due by him to said J. McKim, under or by virtue of said mortgage.
      On these petitions the orphans court, by their order of the 28th of April, 1847, directed the said issues to be sent for trial, as prayed, and also directed that in the trial of said issues, the said petitioners should be plaintiffs, and the said David J. McKim the defendant. From this order an appeal was prayed by the petitioners, and this court, (DORSEY, J., dissenting,) at December term, 1847, reversed this order and remanded the cause.
      The decree of this court, reversing said order is dated the 30th of March, 1848, and decrees "that there was error in the decree of the orphans court of Baltimore county, of the 28th of April, 1847, in not joining William H. Marriott, one of the executors of the late John McKim, Jr., as a co-defendant with the said David T. McKim, the other executor of the said John McKim, Jr., and that, therefore, so much of the said decree be, and the same is hereby reversed, with the costs," &c., "and that the said cause be, and the same is hereby remanded to the said orphans court, for the correction of the said error, making the said W. H. Marriott a party to the issues in the said decree mentioned, and for such other and further proceedings therein, as may be just and necessary."
      The cause being thus remanded, the petitioners, on the 19th of June, 1848, filed another petition suggesting the death of said David, and praying that said issues might be sent for trial, as aforesaid, and Marriott, as surviving executor, be made defendant. Marriott, in his answer to this petition, after referring to the previous answers and proceedings, as showing that said issues related solely to a debt alleged to be due from his said co-executor, states, that being made a party to the proceedings by the original petition, he did not deem it necessary for him to have made return of said mortgaged property or debt; because, from the facts stated in the original answer, and especially the execution of the receipt in full by the testator, he believed there was nothing due the estate thereon, and because the debt being alleged to be due from his co-executor, it was, by law, the duty of said co-executor, if so indebted, to give in the claim, which thereby became assets in his hands, for which his bond was liable, and that the said debt being denied by his said co-executor, he, (Marriott,) as co-executor, had not the right, by any return of the debt made by him, to charge his said co-executor with said debt nor any power to institute any suit or proceeding against his said co-executor, for the recovery of the same; but, on the contrary, in case of a denial or refusal to give in a debt, by an executor alleged to be indebted, the law provided a special mode of proceeding, at the instance of any one interested in the estate, against said executor, by which the debt is established, became assets in his hands; and, therefore, he was neither required nor justified in retaining said debt, without the concurrence of his said co-executor, and in the face of his denial of the debt. The answer, then, admitting the death of said David, by which respondent was left sole executor, states, that by this event he is advised the position of the controversy is materially varied, and that he ought now to make such a return as will enable him, or the parties interested, to take the necessary steps to establish or recover the same. It then states that said David gave a separate bond as executor, amply sufficient to secure what may be due upon it, and that letters of administration had been granted on the estate of said David. It then adds, that by the death of said David, all privity between his estate and that of McKim, the testator, is so far ended, that the only course for the determination of the said claim, is by legal proceedings against the administrator of said David, or on his said bond, or against the mortgaged property; and that the trial of said issues, without making the personal representatives or sureties of said David parties, would be wholly unavailing as to them, and that the necessity and legal propriety of trying, under said issues, the questions involved in the same, has ceased, since by the death of said David, his personal representatives or sureties are liable to legal proceedings for the trial of the same, by the surviving executor, or those interested in the estate, and cannot be made parties to this proceeding. He, therefore, makes return of the debt claimed to be due under said mortgage, and submits that this return having been made, the trial of said issues is not necessary or legally proper, in order to the determination of the existence of said debt.
      This return accompanies the answer, and makes return of the mortgage debt, and returns as to the property mortgaged, that said David retaining possession after the mortgage, remained in possession until his death, denying the mortgage debt, and that the property, or what remains of it, passed to the hands of his said administrator, who claims the same, and denies that there is any debt due under the mortgage, and that he can make or return no inventory of the same, until he can obtain possession of the same by legal process, or otherwise, and for this purpose he submits himself to the direction of the court.
      To this answer a replication was filed, reiterating the former allegations as to the existence of the debt, and the legal insufficiency of the receipt to discharge it, stating, in detail, the former proceedings, and setting out and relying upon the decision of this court on the former appeal, and the order remanding the cause, and insisting on the sending and trial of said issues with the appellant, as surviving executor, as the sole party thereto. And said orphans court, by their order of the 13th of September, 1848, ordered that the said issues should be transmitted for trial, and that the appellant, as said surviving executor, should be the party defendant thereto. From this order the present appeal is taken.
      COUNSEL: By R. JOHNSON and MCMAHON, for the appellants, who insisted:
      1st. That as the said petition, and the issues prayed for under it, did not relate to any debt due by the said appellant, as executor, nor to any assets of the estate in his hands, but solely to a debt due and claimed from his said co-executor, David, and denied by said David, and to the property mortgaged therefor, remaining in the possession of said David, until his death, and passing, at his death, to his administrator holding possession of the same, and contesting said debt; and as the said issues relate exclusively to the existence of said debt, the result of the death of the said David, by the removal of the party to be charged with said debt, was to render the trial of said issues, against the appellant alone, unnecessary, as insufficient to bind the party to be charged with the finding under said issues, or the results thereof, and unauthorised by the acts of Assembly, relative to such issues.
      2nd. That even if this were not so, the whole object of this proceeding as to the appellant, the co-executor, have been substantially gratified, and the trial of said issues, as to him, rendered unnecessary and legally improper, by his aforesaid answers and return, and his submission thereby, to any order of the court, might deem it proper to pass, as to the collection of said debt, and the recovery or return of said property.
      3rd. That under the altered state of the case, produced by the death of said David, and the aforesaid answer and return of the appellant, the former decision of this court was not conclusive as to the right of the petitioners to the trial of said issues, after said occurrences; or as to their right to the trial of them as against the appellant, as the sole party defendant.
      HANDY and NELSON, for the appellees, insisted:
      1st. From all the circumstances of this case, as disclosed by the record of the proceedings, the said appellees and petitioners are legally entitled, as a matter of right, to have their issues aforesaid sent to Baltimore county court, as a court of law for city business, for trial, against the said William H. Marriott, said surviving executor of said John McKim, Jr., and this court must affirm the said decree and order of the said orphans court, bearing date the 13th of September, 1848, the same being in compliance with the said decree of this court, passed in this cause, bearing date the 30th of March, 1848, and made a part of this record of appeal.
      2nd. This court, by its decree passed in the said former appeal, having directed the said issues to be sent to Baltimore county court, aforesaid, for trial, with directions to said orphans court to make the said William H. Marriott a party to the said issues, and for such other and further proceedings as might be just and necessary, the question presented by this appeal is not now an open question, the same being res adjudicata.
      JUDGES: The cause was argued before DORSEY, C. J., SPENCE, MAGRUDER, MARTIN and FRICK, J.
      MAGRUDER, J., delivered the opinion of this court.
      What was decided by the court, on the former appeal between these parties, will appear by the decree then passed, and not by a reference to the points made and argued by either of the parties. This court determined, and could only determine, that so much of the order of the court below "as excluded the said William H. Marriott from being a co-defendant in the trial of said issues in said county court, be reversed, and simply directed the said orphans court to make the said William H. Marriott a party to the said issues, to be sent and tried in the said county court."
      Touching any other matters in controversy between these parties, the court intimated no opinion. It was simply a decision by this court, that in the trial of issues like these, it is usual and proper to make all the executors parties to defend, and in this case the usual practice should not be departed from. It did not, and could not provide for events not to be foreseen; such as the death of any of the persons, by the decree required to be made parties.
      The death of McKim, the other executor, certainly puts it out of the power of the court below to name the original parties as the parties when the issues are to be tried, to make Marriott a co-defendant, as the individual whose co-defendant he was to be, can no longer be associated with him, and especially as this court was bound to know that Marriott was, in interest, a co-plaintiff.
      It is insisted by the appellant, that although it might be proper, while the other executor was alive, to make the appellant a co-defendant, yet, in the trial of the matters now in controversy, (if a trial of them has not become unnecessary,) he cannot, with any propriety, be made sole defendant, if a defendant at all. Surely, in order to decide this simple question, it is not necessary for us to examine all the matters in controversy, which have existed, or may arise between these parties. Issues are to be directed and tried, when the facts in issue must be ascertained before the court can pass any order properly required of it, and when the court is authorised to pass some order grounded in whole or in part upon the facts to be found and ascertained by the trial of the issues.
      What is the matter of complaint in this case? Simply that one of the executors (the one now deceased,) was indebted to the testator at the time of his death, and to secure the payment of that debt, had executed a mortgage to the creditor, and that of this debt, and of the property conveyed by the mortgage, no notice was taken by the executors, in their inventory, of the property or lists of debts due to the deceased returned by them to the orphans court. The executors answered, and set forth their reasons for not returning a debt which, as they supposed, had no longer existence. Issues were directed, and the next matter in dispute was, whether Marriott, who was an executor, though not the debtor executor, should be a party defendant. Of this question this court has disposed, as stated already. McKim, who, by the order of this court, was to be a defendant, has died, and now the question is, who can properly be defendants in the trial of these issues, if, for reasons hereafter to be stated, it be not unnecessary to try them?
      It would seem that a trial of those issues is quite unnecessary. If, in the trial of them, Marriott, and Marriott alone, is to be a party defendant, no verdict which could be rendered, would establish the claim against the estate of David T. McKim, no person having an interest in that estate being a party to the trial.
      If it be said that Marriott was bound to return the debt before the death of his co-executor, the answer is, that there is now no such question before the court below, such a question can only rise in an action upon his testamentary bond, or in some other form to be instituted elsewhere. If it be contended that the trial of those issues is necessary to enable the court below to decide whether Marriott ought not now (and when he is sole executor,) to be directed to make such a return, the answer is, that any such order has become unnecessary, inasmuch as the return has been made by him.
      It has been said, indeed, that the return now made is defective, inasmuch as it does not state whether the debt is sperate. The appellant says, and this is no where denied, that he conscientiously believes that the debt does not exist, and he believes that the debt does not exist, and he believes it because the creditor, in his life time, so informed him, and he has seen a receipt in full executed by him. It would be difficult to say of such a debt, that it is either sperate or desperate. The case, indeed, is a very extraordinary one. It is not denied that the debt has been paid. If the creditor is to be believed, he has declared it in conversation, and also in the form of a receipt in full, and it will be a singular issue, if, in the trial of it, each party is to rely on the testimony of the other, to discredit his own declarations. There seems to be a misconception of the order of this court passed on the former appeal, which, it seems to be thought, took from the court below the power, in any respect, to change their order, further than by directing the name of William H. Marriott to be inserted in it as a co-defendant. This surely is a mistake. This court has never decided that a trial of those issues is necessary, in order to the correct determination of the matters in controversy between the parties. It has decided nothing, except that William H. Marriott ought to be a co-defendant. To make the decree upon the former appeal intelligible, it may be likened to a procedendo issued in any other case which directs the court below to proceed in the cause as if no trial had taken place, or any appeal had been prosecuted. Yet no body doubts that, notwithstanding the words of such a writ, the court below, when in possession of the case, can change entirely the issues, may make a new case, can convert an action of slander into an action of trover, or upon a promissory note, and therein is manifested no disobedience to the superior court; so, upon the return of this case to the orphans court, other issues might be found necessary; and if so, might rightfully be added, or the petition might be altered, and this might require, in order to its determination, other issues to be framed. Indeed, according to the argument for the petitioners, a change of the issues is necessary, for now the thing of which he complains is not that no return of the alleged claim has been made, but that the return is not in every respect conformable to the act of Assembly.
      The truth is, that pending the controversy which gave rise to these issues, the case has been changed, and is like a case sent back by a proceeding, in which, pending the appeal, or in consequence of the decision of the court above, the party impleaded has done everything which he is required by his adversary to do.
      It is made known to us, by the parties, that the controversy is between members of the family of Mr. McKim, claiming as legatees, and his executors, the former alleging that a debt due from one of the executors to the testator, ought to be returned to the orphans court, and the other relying on Mr. McKim's receipt for the debt. Its genuineness is not questioned, nor is a doubt intimated that the testator, when he executed it, understood its contents. The truth of the matter alleged by the testator himself, is the only thing denied, and the only question between the parties seems to be, whether this receipt, although it may have been executed by the creditor himself, with a knowledge of its contents, and of his own free will, is to have all the effect which it seems to be admitted it would have had, if, when the creditor signed, he had also sealed it. Without undertaking to decide a question which is not before us, we have stated what it seems the question really is, and will add a reference to 1st Greenleaf on Evidence, sec. 305, and the authorities there cited.
      The petition which gave rise to this appeal, was filed by the appellees on the 19th June, 1848. It makes known to the court the death of David T. McKim, and asks that the issues aforesaid, as framed by petitioners, may be transmitted to Baltimore county court for trial, and that William H. Marriott, as surviving executor of John McKim, Jr., be made defendant therein. This petition is answered by Marriott, who therein states what he has done since the death of his co-executor. He has done that which the original petition required to be done, and, therefore, a trial of the issues is unnecessary. To this, there is a replication which shows that the matter in controversy, and the admissions made by the parties, requires no matter of fact to be astertained, the simple question in the case being whether a receipt in full, given by a father to his son, is nudum pactum. It is certainly no question whether the mortgagee can claim both the mortgage debt and the mortgaged premises. If the mortgagee chooses to be satisfied, and acknowledge, by competent testimony, that he has received the debt in full, this is usually treated as an equitable release of the mortgaged premises; and the absence of a formal release, and under seal, certainly, under such circumstances, could not make it the duty of the executors to return the mortgaged premises as a part of the property of their deceased testator, to be distributed among his legatees.
      The court below, therefore, in its order of September, 1848, erred in directing those issues to be transmitted to the county court for trial, notwithstanding the death of David T. McKim, and the return then made by the surviving executors, and that in the trial of those issues, William H. Marriott, as the surviving executor of John McKim, Jr., be defendant. This court will sign a decree reversing the order with costs, and dismissing bill.

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      ELIZABETH ANN HALL vs. THOMAS L. HALL, et al; Court of Appeals of Maryland; 6 G. & J. 386; December, 1834, Decided.

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      ISABELLA DUNCAN v. NAVASSA PHOSPHATE COMPANY, Walter G. McAtee, Receiver; No. 1203; Supreme Court of the United States; 137 U.S. 647; 11 S. Ct. 242; 34 L. Ed. 825; Submitted January 9, 1891; January 19, 1891, Decided.

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