Barnum v. Barnum

42 Md. 251, 1875 Md. LEXIS 18

• Court: Court of Appeals of Maryland
• Decided: April 29, 1875
• Status: Published

Opinions

Alvey, J.,

delivered the opinion of the Court.

This case has been in this Court on several former appeals ; the first of which, reported in 26 Md., 119, presented the question of the true construction of the first and dependent clauses of David Barnum’s will; the second, reported in 31 Md., 425, presented questions of the rights, and proper mode of accounting as between the parties, in reference to the use and occupation of the City Hotel buildings and grounds, prior to the sale thereof, under the second clause of the testator’s will; and the third, reported in 33 Md., 283, had reference to the question of the legitimacy of John R. Barnum, the son of Dr. Richard Barnum, deceased, one of the children of the testator, David Barnum.

The present appeal is taken from an order of the Court below, disposing of numerous exceptions taken to the accounts and statements of the special auditor, and remanding the cause to the auditor, with directions to change and modify the accounts, in accordance with the expressed views of the Court.

The questions raised by the exceptions, and passed upon by the order appealed, from, are numerous, and many of them of more than ordinary interest and importance. And without making any prefatory statement as to the nature and character of the several questions involved, we shall proceed to consider them in the order in which they appear to be most consecutively presented, without any particular reference to the number of the exceptions.

1. The first of these questions is that in respect to the legitimacy of John R. Barnum, the son of Dr. Richard Barnum, deceased. This question has not heretofore been presented to this Court; for not having been decided by the Court below until the order from which the present appeal was taken, it could never be properly presented on any former appeal; and the appeal in 33 Md., 283, on which it was attempted to have the question considered, was dismissed, because it was prematurely taken.

Before proceeding to consider the main question, there is a preliminary question, as to the admissibility of certain evidence offered in support of the claim of John R. Barnum, which must be determined.

By the decree from which the appeal, reported in 31 Md., was taken, dated the 14th of June, 1869, all questions in respect to the claim of John R. Barnum to share in the proceeds of the estate were reserved for future adjudication. Under a commission that issued by agreement, on the 9th of June, 1869, John R. Barnum, or those representing him, proceeded to take testimony after the passage of the decree of the 14th of June, 1869, and during the pendency of the appeal therefrom; and which commission and the testimony taken thereunder, were returned into Court on the 30th of June, 1869. The evidence taken under this commission was allowed to remain in Court unquestioned, until the 18th of May, 1814, when exception was filed to its admissibility, on the grounds, first, that it was taken during the pendency of the former appeal; and secondly, that it was taken without notice to the parties resisting the ciaim of John R. Barnum. The commissioner, in his return, certifies that he met to take the testimony “ pursuant to notice,” without saying to whom notice was given, and in the close of his return, he certifies that it was “at the request of the solicitors of the respective parties,” that he closed and returned the commission. It appears, however, that the witnesses were examined in the presence of the counsel of John R. Barnum alone, and there was no cross-examination. The testimony thus taken is supposed to be of the most material importance to.those supporting the claim of John R. Barnum, since deceased.

The pendency of the appeal from the decree of the 14th of June, 1869, certainly constituted no sufficient ground for the exception to the admissibility of the evidence. That appeal, though bond had been given, only stayed the operation or execution of the decree with reference to the rights decided hy it. No rights of John R. Barnum, in support of which the evidence was taken, were decided, but, on the contrary, were expressly reserved; and those rights remained pending subjects of litigation in the Court below, notwithstanding the appeal. An appeal does not necessarily stay all further proceedings in the cause, in reference to rights not passed upon or affected by the decree or order appealed from, but only the execution or operation of such order or decree, when bond is given as required by the 0ode, Art. 5, secs. 23 and 31. Nor do we think that the other ground of exception to the evidence, that is, the want of notice, can be availed of by the exceptants, in the manner and at the time attempted by them. If the execution of the commission was irregular, as alleged by the exceptants, in the omission to give notice, or for other cause, the proper course would have been, not to wait until the final hearing and then seek to have the evidence excluded, but within a reasonable time after the return to move for the suppression of the evidence ; and if upon such motion the Court had been satisfied of the existence of the irregularity, it could, within its discretion, have ordered the evidence to have been retaken on the same interrogatories, with liberty to the adverse party to cross-examine the witnesses. This is the proper course in such cases. Cholmondeley vs. Clinton, 2 Merivale, 81; Healey vs. Jagger, 3 Sim., 494; Wood vs. Mann, 2 Sum., 316; Underhill vs. VanCortlandt, 2 John. Ch., 345; 2 Danl. Ch. Pr., 1148, 1150. By adopting such course the party may obtain the benefit of the evidence, notwithstanding the irregularity in taking it in the first instance, whereas, if the question be decided on an exception to its admissibility at the hearing, he may be deprived of it altogether. Here no formal exception was taken to the evidence for nearly five years after its return, and then the exception goes to its entire exclusion at the hearing. In the meantime all the witnesses may have died, or gone to parts unknown, and to sustain an exception under such circumstances might lead to the greatest hardship and injustice. The Court below did not sustain the exception, but treated the evidence as properly in the cause, and in so doing we think it was entirely right.

Having disposed of this preliminary question, we shall now proceed to consider the main question as to the legitimacy or illegitimacy of John R. Barnum, who has died during the pendency of these proceedings, and is now represented by his wddow and his executor.

The right of the deceased was put in issue by the pleadings, and a large mass of evidence has been produced both in support and refutation of the claim.

The question presented is not as to the fact whether John R. Barnum was the son of Dr. Richard Barnum ; for as to that there would seem to be no doubt whatever; but the question is, whether John R. Barnum was the legitimate son of his father ; and this depends upon the further question, whether Dr. Richard Barnum and Caroline Butler, the mother of John, were ever married or not?

If the claim of the deceased, John R. Barnum, rested alone upon the evidence produced under the commission executed in his behalf, the exception to which we have just determined not to be well taken, we should have no difficulty whatever in declaring it valid. The testimony of Calvin Burrows, a colored man, to the fact that he was present at the marriage of the parties, designating time and place, together with the deed executed in 1889, the inscription on the grave-stone, and the written memorandum made by Richard Barnum, enclosing the lock of hair of Caroline Butler, in the two former of which she is described as his wife, and in the latter as Caroline Barnum, are facts, if unimpeached, that would fully justify us in declaring that a marriage had taken place. And we should do this the more readily, as the law always presumes in favor of legitimacy, and the proof shows the existence of a continued cohabitation of the parties for several years, as man and wife ; and where such is the case, the presumption is always indulged that the cohabitation is legal rather than otherwise. Eor if parties live together ostensibly as man and wife, demeaning themselves towards each other as such, and especially if they are received into society and treated by their friends and relations as having and being entitled to that status, the law will, in favor of morality and decency, presume that they have been legally married. Redgrave vs. Redgrave, 38 Md., 97; Cunningham vs. Cunningham, 2 Dow, 482. But, unfortunately, the facts to which we have referred are confronted with such an array of countervailing evidence, that to maintain the existence of the marriage is rendered utterly impossible.

It is perfectly clear, and not contended to be otherwise, that an illicit connexion between the parties commenced and continued for some time in North Carolina, before they removed to Arkansas. It was while this illicit connexion existed that Dr. Barnum left North Carolina, taking Caroline Butler with him, she then being pregnant with child. They left North Carolina in 1837, and their illicit connexion and cohabitation continued, without intermission, after their arrival in Arkansas. This being so, it is incumbent upon those who set up subsequent marriage between the parties to show when and where it occurred. Cunningham, vs. Cunningham, 2 Dow, 482; Lapsley vs. Grierson, 1 Ho. L. Cas., 498. Here it is affirmed and attempted to be shewn, that the parties were subsequently married in 1838 or 1839, at the village of Manchester Bluff, in Clark County, Arkansas; and that the marriage celebration took place before and in the office of one Edmonson or Edminston, a Justice of the Peace. And having thus fixed upon time and place, and assumed to prove that a valid marriage was then and there celebrated, and at no other place, if the evidence should be insufficient to establish such marriage, thus assumed to be proved, the parties cannot be permitted to rely upon other facts and circumstances as the ground of presumption that a marriage may have taken place between the parties at some other and different time and place from that testified to by the witnesses ; the presumption in such case being that the connexion between tlie parties continued to be illicit, until that presumption is overcome by distinct proof of marriage. Cunningham vs. Cunningham, 2 Dow, 482; Redgrave vs. Redgrave, 38 Md., 98, 99; Blackburn vs. Crawford, 3 Wall., 175. Marriage may, doubtless, be proved, in civil cases, other than actions for seduction, by reputation, declarations and conduct of the parties ; hut where reputation is relied on, that reputation, to raise the presumption of marriage, must be founded on general, not divided or singular opinion; and where reputation in such case is divided it amounts to no evidence at all. And so with respect to the declarations of the parties; the value of such declarations as evidence will always depend upon the circumstances under which they were made. Such is the rule laid down by both Lord Eldon and Lord Redesdale, in Cunningham vs. Cunningham, to which we have before referred.

The only witness produced who professes to have any personal knowledge of the actual marriage, is Calvin Burrows, who was a slave of Dr. Barnum, and a boy of thirteen or fourteen years of age, at the time the sup2Dosed marriage took place. He says that he was present when Dr. Barnum and Caroline Butler were married, in 1838 or 1839, in Manchester Bluff, Dallas County, Arkansas ; and that Squire Edmonson performed the marriage ceremony, in his office; that after the parties were married they returned home, and lived as man and wife, and were so treated by their neighbors who visited them. He also proved that after this marriage, John R. Barnum, in whose right the present claim is made, was born ; and he mentions, as persons who were present at the birth of the child, Dr. Augustus Barnum, who was the brother of Dr. Richard Barnum, a Mrs. Davis and a Mrs. Grey. Dr. Augustus Barnum is dead, Mrs. Davis has not been produced as a witness, and the only Mrs. Grey who is known to have resided in the neighborhood at the time testifies that she knows nothing of the event to which the witness, Burrows, refers.

With respect to the marriage ceremony of which Burrows speaks, it is to be observed, that he gives no details, no description of what occurred, or of the persons present except the parties themselves. It is much to be regretted that the witness was not subjected to a cross-examination, in order that his veracity or his memory might have been thoroughly tested. By that means we could have better seen whether there was any foundation for the story told by him.

By the law of the State of Arkansas, in force at the time this marriage is said to have taken place, among the several civil officers authorized to solemnize the rites of marriage, are Justices of the Peace of the county where the marriage takes place ; and it is expressly made the duty of all persons authorized to solemnize marriages, within sixty days after the marriage occurs, to return a certificate thereof to the clerk and recorder of the proper county, to be by the latter duly registered ; and any Justice of the Peace or other officer, who may neglect or fail to make and return the certificate, is declared to be guilty of a misdemeanor, and liable to criminal punishment. There is no certificate of the marriage produced, nor any evidence that one ever existed. This is a strong circumstance in the case, as it must be presumed that a Justice, celebrating the marriage, would have performed his duty, and especially as the performance of that duty was enforced by prescribed penalties of the law. If any such certificate was ever made, it would not only be the best evidence of the fact of marriage, but would be of easy production.

But the evidence, we think, makes it perfectly clear beyond doubt, that there was no Justice of the Peace in Manchester Bluff, or in Clark County, during the years of 1838, 1839 or 1840, by the name of Edmonson or Edminston. There was a person by the name of Edmonson, and the only one known of that name, residing in that village during that period ; but he was a merchant, and not a Justice of the Peace. The records of the Executive Department of the State furnish no evidence that any person of that name, or of any name of like sound, held commission as Justice af the Peace for the county of Clark, during the period mentioned. There is a certificate produced from the Secretary of State, that a party by the name of Edminston was commissioned as Justice of the Peace for another and a remote county in the State, during that period; and the proof is, that the only commissioned Justice for Clark County, during the years mentioned, was Thomas C. Hudson. It has, however, been insisted, that the party named Edminston, the Justice for Washington County, in that State, may have accidentally or casually been at Manchester Bluff, and been called upon and performed the marriage ceremony. But in this there is an entire want of probability, though it may be within the range of possibility. Such a supposition can form no ground upon which a rational conclusion can be based, in an inquiry like the present.

Hudson swears positively that Edmonson, the merchant, was not a Justice of the Peace, and that he, Hudson, was the only commissioned Justice for Clark County, during the years 1838 and 1839 ; and the statement that Edmonson was not a Justice, derives strong corroboration from the circumstances connected with the execution of the deed at Manchester Bluff, in February, 1839. Hudson did not live in the village, but some distance off, and he was requested to meet the parties in the village on the particular occasion to take their acknowledgments of the deed, which he did. This would hardly have been the case if Edmonson had been a Justice, competent to take the acknowledgments. Edmonson was one of the witnesses to the deed; and it is not at all improbable, that if the witness Burrows was ever present at any ceremony at that place, it was the execution of this deed of the 29th of February, 1839, in the store of Edmonson, and not the marriage of his master to Caroline Butler.

In connection with the execution of this deed, in 1839, there is a significant fact. Hudson, the Justice taking the acknowledgments, states, that he did not know at the time-that the woman introduced by Dr. Barnum as his wife, and who signed and acknowledged the deed, was not the wife as represented; but some time thereafter, and after hearing that the woman was not the wife of Dr. Barnum, but his kept mistress, and there being a rumor in the neighborhood to that effect, Dr. Barnum went to the witness and apologized for having deceived him, in introducing Caroline Butler as his, Barnum’s wife; and then stated that Caroline Butler was not his wife, and that he had never been married to her. Similar statements and declarations were repeatedly made, not only to Hudson, but to Harris, to Dr. Cooper, to Mrs. Overton and others. These -statements were made by Dr. Barnum time and again, both before and after the death of Caroline Butler; and they were frequently accompanied with the further' statement that the child, John, was illegitimate, and that he intended to apply to the Legislature for an Act to legitimate him ; that he had not married Caroline, and never intended to marry her. The testimony of Mr. Harris, and Dr. Cooper, with whom Dr. Barnum seems to have been on terms of intimacy, is full and explicit to these facts.

Of the several witnesses examined in Arkansas, all of whom having been well acquainted with Dr. Barnum, there is but one who says ho ever heard Dr. Barnum admit or allude to the marriage spoken of by Calvin Burrows, and that witness is Moses Overton. He says that Dr. Barnum told him that he, Barnum, had married Caroline Butler, at Manchester Bluff, and that the marriage took place before the child John was horn. But when we compare the evidence of this witness with that of his wife, Mrs. Overton, as t-o declarations and statements of Dr. Barnum made to her, we think there is great reason to suspect that Moses Overton labors under some misunderstand - ing or mistake as to what he did hear from Dr. Barnum, on the subject. Mrs. Overton states explicitly, that Dr. Barnum, in her own house, and when he was perfectly sober, declared to her, after Caroline Butler’s death, that he had never married Caroline, and that he had never thought of so doing, because she was not his equal. She further states, that she never heard of the marriage at Manchester Bluff, and that Dr. Barnum and Caroline Butler were not generally reputed or acknowledged to he man and wife, though they acted toward each other as if they were such. This evidence of Mrs. Overton is in perfect accord with that of Mr. Harris, Dr. Cooper, Mr. Hudson and David McLaughlin.

According to the evidence of one of the witnesses, when Dr. Barnum was about leaving North Carolina with Caroline Butler, he declared his intention to pass her off as his wife; and it would appear that he was desirous of carrying out that purpose; for upon their arrival in Arkansas they cohabited as man and wife, and he allowed her to he called Mrs. Barnum, and hence the impression was at first produced that they were really married. But upon leaving Arkansas in 1841, Caroline no longer bore the name of Baruum ; and on their arrival in Baltimore, Dr. Barnum represented Caroline to Andrew McLaughlin as being the wife of his, Barnum’s, overseer. She was then sick, and instead of being taken to the hotel among the family of Dr. Barnum, and where he himself went, she was taken with her child to a hoarding house in the city, where she remained sick until she died a few months after. She never was in the hotel where Dr. Barnum himself hoarded and lodged; and she was never in any manner received or recognized by the members of his father’s family as his wife. On the contrary, she was known simply as Caroline Butler, and it seems to have been well known and understood among Dr.- Barnum’s family that she was his kept mistress, by whom he had children. And all of Calvin Burrow’s statement as to the manner in which Caroline Butler was received by the Barnum family, arid where she was taken upon her arrival in Baltimore, and as to her visit to David Barnum’s country seat, would seem to he mere fiction.

It appears that Mrs. Barnum, the mother of Dr. Barnum, understanding her son’s relation to Caroline, procured for the latter lodging for herself and child, and provided them with their food. Caroline was at first introduced at the hoarding house as a widow with a child, but that statement was soon corrected, and Mrs. Barnum herself informed Mrs. Bayzand, the keeper of the boarding house, that Caroline was not married, and that the child was illegitimate ; to which Mrs. Bayzand replied that if she had known that at first she would not have received Caroline in her house, hut she was then too ill to he removed. There is one fact that cannot fail to be observed, and that is, that upon no occasion, nor under any circumstances, is Caroline ever shewn to have held herself out as or claimed to he the wife of Dr. Baruum, except in the single instance of signing and acknowledging the deed at Manchester Bluff, in 1839. Nor did Dr. Barnum treat her as his wife after leaving Arkansas. While she was in Baltimore, sick, and in her last illness, lie visited her hut seldom, and then only for a few moments at a time. He was not present at her death, nor does it appear that he even attended her body to the grave. She died and was buried as Caroline Butler — no person then assuming that she had ever been married.

Mrs. Barnum, the mother of Dr. Barnum, who was kind and attentive to Caroline in her sickness, may well be supposed to have known and fully understood the relation that existed between her son and the poor unfortunate woman; and touched hy the distressed and forlorn condition of the mother, and feeling a deep solicitude for the child, that good lady made earnest effort to induce her son to marry Caroline before she died. He promised to do so ; and the time was fixed, the attendance of a Minister of the G-ospel procured, but death intervened before Dr. Barnum appeared to redeem his promise.

Now, why this proposal of marriage, and this promise to marry, if a previous marriage had taken place ? If a previous marriage had occurred between the parties, no pei’son can suppose for an instant that Mrs. Barnum would not have been informed of it, if not hy her son, certainly by Caroline herself.

Nor is this all. Mrs. Barnum always spoke of the child as illegitimate. She so spoke of him to the members of her own family, to Mrs. Bayzand, arid to Mr. Rockwell.

The declarations and statements of Mrs. Barnum, as to the relation of her son and Caroline Butler, and the illegitimacy of their child John, as testified to by different witnesses, have' been excepted to, as being but hearsay, and therefore inadmissible. But it is one of the well recognized exceptions to the general rule excluding hearsay evidence, that in matters of pedigree, embracing marriages and births, hearsay is admissible, provided it proceed from persons who are “ de jure related by blood or marriage to the family in question, and who, consequently, may be supposed to have had the greatest interest in seeking, the best opportunities for obtaining, and the least reason for falsifying, information on the subject.” 1 Taylor’s Evi., 575.

Here Mrs. Barnum is dead,.and the declarations given in evidence were all made ante litem motam. Her declarations as proved by the witnesses are admissible — certainly upon the question of marriage of her son — and if not as directly proving the bastardy of John R. Barnum, who, though de facto her grand-son, was de jure a stranger to her, they are at least admissible to show that the boy was not the legitimate son of Dr. Richard Barnum. Stevens vs. Moss, Cowp., 593. And of these facts the general repute in the family, proved by surviving members of it, is held admissible. Doe vs. Griffin, 15 East, 293.

But if Mrs. Barnum’s declarations were all excluded, it would in no manner affect the conclusion to be drawn from the other evidence in the cause. Dr. Richard Barnum himself, over and over again, both in Arkansas and in Maryland, to strangers and to the members of his own family, declared that the boy John was illegitimate, and that he had never been married to the mother, Caroline Butler. These declarations are not only competent evidence, (Stevens vs. Moss, Cowp., 591; Hargrave vs. Hargrave, 2 C. & K., 701; Crawford vs. Blackburn, 17 Md., 49,) but they proceeded from a source certainly well informed upon the subject, and, in the absence of all apparent motive to falsify the truth, they must be accepted as reliable.

Rut to all the evidence to which reference has been made, there is still another fact to be added, which is of the most conclusive import, and that is the Act of the Legislature of the State of Arkansas, in 1853, whereby it was enacted that John Rockwell Barnum was thereby constituted a legal heir of Richard Barnum, and repealing all laws inconsistent therewith/ Why apply to the Legislature and procure the passage of such an Act, if John R. Barnum was the legitimate son of Dr. Richard Barnum? It was in reference to procuring such an Act that Dr. Barnum spoke to Dr. Cooper, Mr. Hudson, Mr. Harris, Dr. McLaughlin, and others. If there had been a marriage between Dr. Barnum and Caroline Butler, the Act would have been wholly useless and futile; for if the child had been born before marriage, but recognized by the husband after marriage as his, by the law of Arkansas, existing at the birth of the child John, and still existing, such child was declared legitimate. Ark. Code, chap. 56, sec. 4, p. 436. According to the terms of the Act, there could have been but one object in having it passed, and that was to impart inheritable capacity to John R. Barnum to take from Richard Barnum, as far as the Legislature of that State could do so. That such an Act would ever have been applied for and obtained, if John R. Barnum had been the legitimate son of Dr. Richard Barnum, it is next to impossible to believe.

There are two facts, however, much relied on by the claimants, to which reference must be made. These are the memorandum enclosing the lock of hair, and the inscription on the grave-stone. When the memorandum enclosing the hair was made, is uncertain ; it must however ' have been made after 1845, as it was in that year that Dallas County, mentioned in the memorandum, was formed. The hair was retained as a memento for the son, as the ■ memorandum is addressed to him; and it was not unnatural that the mother should have been mentioned as Caroline Barnum, as if she had been in truth the wife of the father. And as to the inscription on the grave-stone, that wa's made in 1859, about eighteen years after the death of Caroline Butler. Her remains were taken from their original resting place, and transferred to Mount Olivet Cemetery, in 1859, and it was then that the inscription was made, and after the commencement of a litigation in the result of which any legitimate child of Dr. Barnum would have been most deeply interested. Why, or under what motive it was done, it may be difficult rightly to conjecture. The evidence, however, in disproof of marriage, is altogether too strong and irresistible to be overcome by that inscription, and the other circumstances relied on by the claimants.

And such being the case, while we have had a strong disposition to maintain the claim of John R. Barnum, we have been forced to the conclusion that he was not legitimate. j,.

But/it is contended, that notwithstanding there may have been no marriage between Dr. Barnum and Caroline Butler, yet, by the operation of the Act of the Legislature of Arkansas, before referred to, John R. Barnum was rendered legitimate, as if. a valid marriage had taken place, and was therefore capable of taking whatever right that would or could devolve on any legitimate child of his father ; that the Act was retroactive, and related back to the time of the birth of the child declared to be heir.

In this, however, we do not agree with the counsel of the claimants. As we have seen, the Act makes no reference to any marriage, and in no sense could operate to confirm any defective or imperfect marriage. Its operation does not even depend upon the fact that John . R. Barnum was the child of Richard Barnum. It simply, by force of the law itself, and not of the circumstances of birth or relationship, gave to John R. Barnum a personal status, with capacity to inherit from Richard Barnum as heir. This Act could have no extra-territorial operation whatever, except as to any rights that may have been acquired under it, in the State of Arkansas. As to such rights they would be respected everywhere. Sto. Confl. L., secs. 101, 102. But as to capacity to acquire property beyond the State passing the Act, by virtue of the particular status given the party, that the Legislature could not confer. Even if the Act had professed to legitimate John R. Barnum, without reference to previous marriage, it could have no operation here, and no rights involved in this case could be affected by it. This would seem to be clear .both on reason and authority. 5 Com. Dig. Parliament, (K,) p. 301; Birtwhistle vs. Vardill, 5 B. & Cr., 438; Houlditch vs. Marquess of Donegall, 2 Clark & Finn., 476; Smith vs. Derr’s Adm’rs, 34 Penn. St., 126; Sto. Confl. L., secs. 87, 87a.

The claim, therefore, made in the right of John R. Barnum, must be rejected.

2. Tire next question raised on the exceptions to the special auditor’s accounts, and now to be considered, is that in respect to the disposition of two parts of the estate devised or bequeathed under the second clause of David Barnum’s will — two of the legatees for life having died since the death of the testator, without children or descendants. The first clause of the will, as we have before stated, has been declared void, because it violated the rule against perpetuity; and upon that clause failing, the second clause, which was intended as an alternative clause to the first, has been declared to be operative as to the City Hotel buildings and grounds. 26 Md., 119.

The testator, by the second clause of his will, directed, in the event that his views as expressed in the first clause should be disappointed, so that a sale of the hotel buildings and grounds should take place during the life of any of his children, that the proceeds of sale should be invested in mortgage, ground rents, or the debt of the United States, or of the City of Baltimore, and that, subject to the payment of one-third of the income of the investment to his wife for her life, “ the said investment shall be for the benefit of my children during their lives, and after their death shall be the property, for the shares of the decedents, of their respective children or descendants, per stirpes; the children or descendants of such of my children as shall have died before the investment, taking as their absolute property, and per stirpes, the shares to which, if they had lived, the deceased would have been entitled."

The testator, at the date of his will and at the time of his death, had five children living — three sons and two daughters. Of these children but one survives, and of the four deceased, two left children, and the other two, Ephraim K. Barnum and Richard Barnum, never had lawful issue or descendants. By the first clause of his will, the testator gave the rents of the hotel establishment, as he had directed it to be leased from time to time, to his five children by name, and their respective heirs, per stirpes.

As by the second clause of the will, the testator, upon the failure of the first clause, which was void ab initio, contemplated that a sale should be made of the hotel buildings and grounds, and the proceeds invested as directed by him, the conversion in the manner directed must, be regarded for all purposes as effected at his death, upon the principle that equity considers that as done which is required to be done. 26 Md., 178; Beauclerk vs. Mead, 2 Atk., 167; Robinson vs. Robinson, 19 Beav., 495; Craig vs. Leslie, 3 Wheat., 563; Cropley vs. Cooper, 19 Wall, 167. And as It is of the proceeds of sale that life estates are expressly given to all the children of the testator, with remainders to the grand-children or descendants, per stirpes, until the property was actually sold, it stood in lieu of the investment of the proceeds, and in no manner prevented the estates from vesting in the legatees.

Two of the legatees for life having died without children or descendants to take in remainder, the question is, who is entitled to the shares of those two legatees for life, and how have those shares been disposed of, in default of parties to take in succession, after the exhaustion of the life estates, as provided in the second clause of the will ?

It is contended by the complainants, and those claiming similar interests, that the clear intention of the testator was, as gathered from all the provisions of the will, that after the exhaustion of the life estates limited to his children, the residue should be confined to his family and descendants; and that the only construction by which that intent can be gratified, is that by which the grand-children in esse at the death of the testator take as a class, and per stirpes, inter sese. While on the other hand it is contended that, by the second clause of the will, no disposition is made of the remainder, in the case of a child dying without descendants, and that, by the seventh or residuary clause, all the rest and residue of the testator’s estate of every kind, not otherwise disposed of, was given, less the provision therein made for his wife, to and among all his children, or their heirs, as tenants in common, share and share alike.

As to the testator’s children, the legatees for life, it is very clear, we think, that they did not take as a class simply, with reciprocal right of survivorship. They had been named specifically in the preceding clause of the will, and when the testator speaks of his children in the second and alternative clause, he must be taken as referring to the children previously named. They are described, it is true, as his children, but by reference they are individualized, and there is nothing uncertain as to the particular persons in contemplation and they took, not as joint tenants, but as tenants in common for life. The language of the will is, “ that the investment shall be for the benefit of my children during their lives, and after their death, shall be the property, for the shares of the decedents, of their respective children or descendants, per stirpes.”

This language clearly imports severance or plurality of interests, and thereby constituted the children of the testator tenants in common for life. In the case of Moore’s Settlement, 10 W. R., 315, it was held, that under a gift to the testator’s brothers and sisters, “or their executors or administrators respectively, the brothers and sisters took as tenants in common.’’ Hawkins on Wills, 112.

But with respect to the persons to take in remainder, the same rule does not apply. The gifts in remainder are not to legatees nominatim, or to any definite number, but the description of the objects of the bounty is made by the use of the collective terms, “children or descendants,’’ thus making the gifts to classes, the individual members of which were indefinite. The common instance of such gift is where a testator gives to his children generally as a class, without name or number, whether as joint tenants or tenants in common ; in which case the objects composing the class at the testator’s death, whateAmr be their number, and whenever born, are entitled; and the fact of the gift being to them as tenants in common,- will not prevent a single object representing the class from taking the whole. Stewart vs. Sheffield, 13 East, 526; 2 Pow. on Dev., 327. This is a well settled rule of construction, and has been acted on by this Court in the case of Young vs. Robinson, 11 Gill & John., 328.

Here, as we have seen, the classes are described simply by their relation to the legatees for life, and every person answering the description at the death of those respective legatees for life is entitled, although not in esse at the death of the testator. Each legatee for life was made the stock or fountain of a distinct and separate class to take in remainder the share to which the legatee for life was entitled. These shares are distinct and separate estates, and as between the legatees for life, or the classes to succeed them, there is no express or implied reciprocal limitations, or successive interests whatever. See case of Hodgson’s Trust, 1 Kay & J., 178.

But as there is no gift or bequest over in the events that have happened, of two of the legatees for life dying without children or descendants, the question is, how are those shares or interests disposed of, if disposed of at all, under the will?

The testator, by the seventh or residuary clause of his will, gave and devised all the rest and residue of his estate, of every kind, not therein before disposed of, less the provision in favor of his wife, to and among his children and their heirs, as tenants in common, share and share alike.

The property here in question is not real estate, but is personal; nor is this the case of a void devise or bequest; but is the case of property not otherwise disposed of by any provision in the will. Why then should it not pass under this broad residuary clause ?

There is always a strong disposition in the Courts to construe a residuary clause so as to prevent an intestacy with regard to any part of the testator’s estate, unless there is an apparent intention to the contrary. As was said by Sir Wm. Grant, in Leake vs. Robinson, 2 Merv., 392, with regard to personal estate, everything which is not well given by the will falls into the residue; and it must be a very peculiar case indeed, in which there can at once be a residuary clause and a partial intestacy, unless some part of the residue itself be not well given. It is immaterial how it happens that any part of the property is undisposed of — whether by the death of a legatee, or by the failure of the testator to provide for all the events that may happen upon which the bequest may depend for its complete effect. And here as we find nothing in the second clause of the will, or in any other clause of it, to raise an implication in favor of vesting such remainders in the other children or their descendants, otherwise than through the residuary clause, we can have no difficulty in determining upon the comprehensive terms of that clause, that such remainders passed under it, as residue not before disposed of, and became vested, the one-third part thereof, being personalty, in the wife, and the other two-thirds in the testator’s children, as tenants in common.

Where a particular estate or interest is carved out, with a gift over to the children of the person taking that interest, as in this case, such gift over will embrace not only the objects living at the death of the testator, but all such as may subsequently come into existence before the period of distribution ; Middleton vs. Messenger, 5 Ves., 136; and in such case, the children, if any, living at the death of the testator, take an immediate vested interest in their shares, subject to the diminution of such shares, that is, to their being divested pro tanto, as the number of objects is increased by future births, during the life of the legatee for life. 2 Pow. on Dev., 303; Taylor vs. Mosher, 29 Md., 443; Oppenheim vs. Henry, 10 Hare, 441; Baldwin vs. Rogers, 3 D. M. & G., 649. And, in such case, in the event of there being no objects in existence at the death of the testator to take in remainder, such remainder falls into the residue, until objects come into existence, when they take by way of executory bequest. Weld vs. Bradbury, 2 Vern., 705.

For these reasons, we are of opinion that the Court below was correct in sustaining the exception taken by the defendants, the McLaughlins, to the special auditor’s accounts, because of the manner in which the share of the estate of which E. K. Barnum, deceased, was legatee for life, was treated therein; and the same reason applies as to tlie share of which Richard Barnum was legatee for life. Both of these shares fell into the residue, and passed under the residuary clause of David Barnum’s will.

3. We next come to the question as to the time down to which allowance should be made to the defendants representing Andrew McLaughlin, for the meliorations and permanent improvements placed on the hotel buildings by Andrew McLaughlin in his life-time. This question is raised both by an appeal from the decree of the Circuit Court of the 26th of May, 1810, under which the accounts have been stated, and by an exception to those accounts; and which exception was overruled by the Court below, and in so doing we think there was no error.

By the decree of the 26th of May, 1810, passed in strict conformity to the opinion of this Court, (31 Md., 425,) the special, auditor was directed “to take an account of the amount of allowance to be made for the meliorations and improvements of said property, made by Andrew McLaughlin, since the death of David Barnum and prior to the filing of the original bill in this cause. ’ ’ Nearly all the permanent improvements by McLaughlin, if not quite all, for which allowance has been made, were placed on the property during the years of 1856, 1851 and 1858 ; and the bill in this cause was not filed until the 8th of March, 1861.

It has been strongly urged by the complainants, and those claiming similar interests with them, that McLaughlin had actual notice of their rights and claim long before the bill in this cause was filed, and before he made the improvements for which allowance has been made; and that they are not precluded by any previous decision of this Court from claiming the full benefit of that notice on this appeal. The notice of their rights and claim, as they insist, was given to McLaughlin by a bill filed by the present complainants in the Circuit Court of the United States, for the District of Maryland, on the 28th of August, 1854. That hill was not prosecuted, hut the suit was allowed to abate in 1862.

When this cause was here in 1869, (31 Md., 425,) the appeal was taken from an interlocutory decree, settling the principles upon which an account was to he stated;— an appeal from such an order or decree being allowed by the 21st section of Art. 5, of the Code. In the transcript of the record then before us, the bill filed in the United States Court did not appear, but only the docket entries of such a suit. There was nothing to show the nature of the allegations of that bill, or the character of the right asserted by it. And consequently this Court, in declaring the principles .that should govern in stating the account for meliorations and improvements, had no reference whatever to that bill. The question of the right to the allowance, and the time down to which the allowance should be made, were among the most material questions -on that appeal; and this Court then decided, and which decision must be taken as conclusive, that for all permanent improvements and meliorations placed upon the property since the death of David Barnum, and prior to the filing of the original bill, meaning of course the original bill in this cause, an allowance should be made. Nor should we have decided differently if the bill filed in the United States Court had been before us. That bill, as it now appears, was filed upon the supposition and theory that the first clause of David Barnum’s will was perfectly good and operative, and that the rights of the complainants resulted from a construction thereof, and not of the second clause of the will. That first clause of the will has been declared void, and of course the supposed rights founded on its construction fell with it. And although the same rights resulted to the complainants by the second clause of the will, yet, in order to have asserted those rights, an amendment of the bill would have been required. The bill, therefore, as it was filed in the United States Court, gave no specific notice of the rights of the complainants as presented in their present hill; but on the contrary, conceded that McLaughlin was rightfully in possession of the premises, under Zenus Barnum, the lessee. We should not, therefore, have been disposed to regard that bill as sufficient notice of the assertion of the present claim by the complainants, founded on another provision in the will, to justify the Court in depriving McLaughlin of all right to compensation for his permanent improvements of the property. In his relation to the property and to the complainants, he not only held the rights and the position of the legatees for life, whose interests he had purchased, but he was absolute owner of nearly three-fifths of the entire estate. He was not, therefore, in any proper sense, a mala fide, possessor; and it would be unjust and inequitable in the extreme, under the circumstances of this case, to allow the complainants and others to take the benefit of the permanent improvements, in the enhanced value of the property, without making compensation therefor ; as by so doing the property and money of one party would be appropriated to the profit of another, without consideration, and where there has been no real default. The Court below, therefore, was entirely correct in overruling the exception to the auditor’s accounts in this particular.

4. The next question raised on the exceptions to the special auditor’s accounts, is one in respect to the deduction of one-third of the rents ascertained from October, 1853, down to the death of Mrs. Ann K. Barnum, in 1866, as and for her proportion of such rents.

By the second clause in the will of her deceased husband, Mrs. Barnum was entitled to the one-third of the income to arise from the investment of the proceeds of sale of the hotel buildings and grounds, during her life, and as the property stood in the place of the investment that was directed, she, of course, was entitled to the one-third of the rents during her life. It is insisted, however, that as she received from McLaughlin, from 1853 down to the time of her death, the sum of $17,242.10, at different times, and demanded no more, but was satisfied with that sum, that no other or greater sum should be allowed; and that after deducting the sum thus actually paid from the $69,388.12, her proportion of the rents, the balance ought to be added to the sum for division among the parties in interest. But this is not our view of the case. Mrs. Barnum had a distinct interest in the rents of the property, so long as it remained unsold; and that interest she could have disposed of as she thought proper. Whether she did assign or dispose of it, or whether she agreed upon a special rental in respect of it, we are not now called upon to decide. Mrs. Barnum is dead, and there is no representative of hers before the Court. But it is quite certain that these complainants, in this proceeding, have no right or standing to claim the proportion of the rents awarded to Mrs. Barnum. If she did not dispose of her interest, or if she made no contract in regard thereto, then her proportion of the rents, less the amount that she received thereon, form part of her estate, and may be claimed by her personal representatives. The complainants here are suing for their own individual rights under the will, and they are entitled to demand those rights, and nothing more, and those rights are, in respect to the rents, the one-fifth part thereof, after deducting the one-third during the life of Mrs. Barnum, whose estate is also entitled to the one-third of two-fifths of such rents in respect of the two shares that fell into the residue, from the time of the death of E. K. Barnum and Richard Barnum, respectively, to the time of sale. We therefore concur with the Court below in overruling the complainants’ exceptions in this particular.

5. We next come to the exceptions taken to the accounts, because of the manner in which the special auditor proceeded to ascertain the enhanced vendible value of the hotel buildings and grounds at the time of sale, by reason of the meliorations and improvements placed thereon by McLaughlin; and because of the manner in which the evidence of certain witnesses were estimated in arriving at conclusions and results. These questions are embraced by several of the exceptions, both on the part of the complainants and the defendants, and have been much discussed in the course of the arguments at bar.

When this case was here on a former appeal (31 Md., 425,) this Court was specific in its direction as to the manner of taking the accounts, as well of the rents and profits as of the meliorations and improvements. That direction was, that the account for rents and profits should be taken from the time the complainants’ title accrued, down to the day of sale under the decree, on the basis of a reasonable yearly occupation rent of the premises, in the condition in which they were left by David Barnum, (the occupier or tenant making the necessary repairs,) without regard to any meliorations or permanent improvements made thereon during any part of that period; and that the amount of allowance for meliorations and improvements should be estimated by the extent to which those improvements may have enhanced the vendible value of the property at the time of sale under the decree ; such vendible value to be fixed by the price obtained for the property at the sale. This was certainly plain and explicit. And if this plain direction had been more constantly kept in mind and conformed to, in the examination of the witnesses upon this subject, than would seem to have been done, we should, doubtless, have had much less complication in the case than wo have. But we think, nevertheless, that the special auditor was substantially correct in his manner of dealing with the subject, and that the Court below was right in sustaining this part of his report.

In arriving at conclusions in reference to the amount of enhancement of vendible value by the meliorations and improvements, the first question to be answered was, what would have been the vendible value, on the day of sale, of the hotel buildings and grounds, taken as a whole, as left by David Barnum, assuming them to have been kept in substantial repair? and not what was the value of the ground, and what the value of the buildings, separated. This first question answered, the next question was, how much did the meliorations and permanent improvements add to the vendible value of the hotel property, as it ivas sold? and this last question is virtually answered by the price obtained at the sale, if that sale was fair, and the property sold for its marketable value. If, in the opinion of witnesses competent to speak upon the subject, the real vendible value of the property was not enhanced by the improvements, and the property, in its condition as left by David Barnum, would have sold for as much, at a fair sale, as was actually realized by the sale made on the 15th December, 1810, then, of course, no allowance should be made for improvements ; while, on the other hand, to the extent that those improvements are shewn to have enhanced the vendible value of the property, as it was actually sold, allowance should be made. And this we understand to be the principle that governed the special auditor, in • making the estimates and stating the account.

But it is insisted that the auditor, in making the estimates stated by him, gave weight and value to evidence that ought to have been disregarded, and altogether excluded from consideration. The evidence specially objected to, as being of the character to be excluded, is that given by John West, Allen R. Barnum, and Starkweather, the architect. But upon a careful examination of the testimony of those witnesses, we think the auditor was entirely corred in including their estimates in the average of the estimates of the various witnesses who testified upon this subject. The witnesses, whose testimony is objected to, had special means of knowledge that few other witnesses possessed, and with respect to some of the elements in the estimate, were most proper. Two of them had been engaged in conducting the particular hotel, and were hotel-keepers hy profession, and the other was the architect who made all the estimates for, and superintended the improvements made on the establishment, the allowance for which is the subject of controversy. It is also objected that the special auditor did not give due weight to Mr. Gelston's testimony. But we do not know what greater weight could have been given than was allowed it by the auditor, unless it had been adopted to the exclusion of the evidence of the other witnesses. His estimate, though it may perhaps he regarded as an extreme one, was placed among the estimates of the several other witnesses for average, and, in that mode, the complainants received the full benefit of his evidence. It is very true, the method of reaching a result hy averaging the estimates of a number of witnesses, upon a question of value like the present, where there may he a great diversity of views and opinions, and the witnesses unequally informed, does not ensure entire certainty, nor always entire satisfaction. But, as is well stated hy the special auditor, it is the only method which the nature of the case admits of, and is in accordance with usage and precedent, which hold that the most reliable and safe method of approximating the truth in such cases, with the least risk of falling into gross error, is that of taking the average of all the opinions expressed, rather than that of selecting any one to the exclusion of all others. See the case of Jones vs. Jones, 4 Gill, 87. The average of the estimates in this case, excepting that of Mr. Broumel, would appear to be iu all respects fair and proper ; and as to the estimate of Mr. Broumel, we think the Court below was correct in excluding it, for the reasons stated in its opinion. The estimate of no witness should be included iu the addition for average, whose testimony, if it stood alone, could not be relied on by the Court, as the foundation for its decision of the question.

6. The special auditor’s accounts are excepted to on various other grounds ; among these that he did not consider and treat the rental from year to year, accruing to the complainants, as having been applied to the making of the improvements on the original buildings, and thus entitle them to rent on the improved hotel, instead of the hotel as.left by their grandfather. But such a mode of stating the accounts would have been a clear departure from the directions of the decree, and there is no equity shewn, in the facts of the case, that requires the accounts to be so stated.

Nor was the exception well taken to the accounts, that the auditor did not charge as against the vendible value of the improvements placed on the property by McLaughlin, any fair proportion of the ground-rent on the hotel property. The decree, directing the accounts, did not contemplate such a charge, and, under the circumstances of this case, there is no equitable ground for it. And equally without foundation is the exception to the accounts, that the auditor, in stating the account of the rents did not state it with annual rests, and charge interest on the yearly balance thus ascertained. This would not have been in accordance with the decree under which the accounts were taken, and, moreover, this is not a case for such mode of stating the account; and the Court below was therefore correct in overruling the exceptions in all these particulars.

7. By their fourth exception to the accounts, the complainants insist, that the special auditor, instead of deducting the annual interest on the stock-debt, constituting a charge on the premises, from the rentals as ascertained, year by year, down to the time of the sale, should have applied such rentals to the redemption or extinguishment of the stock-debt, to the relief of the property ; and that the shares of such stock-debt, amounting to §10,200, purchased and held by McLaughlin, should have been treated as paid and extinguished, except as to the sum actually paid therefor. For this there was no warrant in the decree under which the accounts were taken, nor is there any as matter of right.

The stock-debt constituted a charge upon the hotel premises, and each party, taking under David Barnum’s will, took his interest subject to that charge. McLaughlin, while he occupied the position of tenant for life, under the father of the complainants, was only hound to keep down the interest, and was not required, as such tenant, to redeem or take up the principal for the benefit of the estate. After the extinction of the life-estate, and McLaughlin became tenant in common with the complainants, as to the remainder of the estate, then each party was bound to pay bis own proper proportion, not only of the interest, but of the principal of the incumbrance ; and if McLaughlin did in fact pay all the interest that accrued on this charge, he is entitled, by way of contribution from his co-tenants or co-owners, to reimbursement to the extent of their interest; and that reimbursement is made in the shape of credits on the rent account. He was under no obligation to redeem or pay off the stock-debt, for the relief of the common estate ; and if he did purchase any portion of the debt, the presumption is that he purchased it for his own benefit, and with no view to exonerate the estate. Burrile vs. Earle of Egremont, 7 Beav., 205. This presents no analogy to the case alluded to in argument, where two devisees are in possession of land under an imperfect title, devised to them by their common ancestor, and one of them buys up an outstanding or an adverse title, for the purpose of disseizing or expelling his co-tenant or co-devisee. In such case the purchase will enure to their common benefit, subject to an equal contribution to the expense. Van Horne vs. Fonda, 5 John. Ch., 388. The Court would not allow such an advantage tobe taken, because it would be in violation of good faith, amounting to a fraud. Here there could be no such pretence. The purchase of the stock could in no manner prejudice the rights of the other parties in interest.

We think, therefore, that the exception to the accounts on this ground was also properly overruled by the Court below.

8. An exception has also been taken, that the special auditor did not take an account of the hotel furniture left at the death of David Barnum, appraised at $25,000, and apply' the appraised value thereof to the extinguishment of so much of the stock-deht, or treat the appraised value of the furniture as so much money in the hands of McLaughlin, with which to redeem that debt, and thus relieve, to that extent, the proceeds of sale of the hotel premises. But the simple answer to this exception is, that we have nothing to do with the furniture in this proceeding. The furniture was not embraced in the description of the property operated upon by the second clause of David Barnum’s will, and forms no part of the estate to be brought into the accounts in this cause ; and the complainants’ hill, so far as it sought an account of the furniture has been dismissed. This furniture, we must suppose, has been, or will be administered as part of the personal estate of David Barnum ; and if McLaughlin appropriated and used the furniture, as it appears he did, he or his representatives may have accounted therefor, or may be held liable so to account, to the personal representatives of David Barnum. Those representatives are not now before this Court, and we can make no decree in this cause that would affect their rights. The exception, therefore, was properly overruled.

9. There is also an exception to the accounts of the auditor, because of the amounts of taxes ‘allowed as deductions from the annual rents ; and this exception we think was well taken, and the Court below was in error in overruling it. 'With the money in hand with which to pay, there is no principle upon which McLaughlin could be allowed for either interest paid, or the discount he received for prompt payment of the bills as they were presented. The allowance should have been for only such amounts as were actually paid, less the interest, in cases where, by delay, interest was paid on the original amounts of the bills.

10. There is also an exception by the defendants, the McLaughlins, because of the non-allowance for insurance. There was no evidence, it seems, produced before the auditor upon this subject, and hence no allowance was made ; and the exception will avail only because the accounts have to be remanded'to the auditor, for re-statement for other causes. Parties are bound to produce their evidence in due time, and having neglected it, the Court will not open the accounts at the instance of the party in default. But here, as the cause has to be remanded, we can perceive no good reason why the defendants may not be allowed to produce their evidence to entitle them to a credit for any such proper insurance as covered and protected the interests of the complainants, and others in interest. We therefore concur in the action of the Court below in respect to this exception.

11. The complainants, and some of the defendants, except to the competency of 'Daniel Dorsey as a witness to testify on behalf of the defendants, the McLaughlins ; and also to certain portions of his evidence as being inadmissible, because founded on books and accounts which were not produced.

As to the competency of the witness, we can perceive no good ground for the exception. Mr. Dorsey is not a party to the cause, nor was he produced to testify in support of any interest of his own of a nature to render him incompetent as a witness, under the Acts of 1864 and 1868, as against the exceptants. But as to such portions of his evidence as appear to be founded upon, and are the mere statements from books and accounts, which were not produced, they ought to be excluded. It is clearly incompetent for a witness to speak of the contents of hooks and accounts not produced, and where the adverse party has no opportunity to cross-examine in regard to them. Such hooks and accounts should be produced, to speak for themselves, as the best evidence, if within the power of the party desiring the proof, and if not within his power, a proper foundation should be laid for the introduction of secondary evidence of their contents. No such foundation appears to have been laid in this case, and hence, all such parts of the evidence of the witness as relate to the contents of hooks, or the state and condition of accounts, should be excluded.

12. We come lastly to an exception by the complainants, and some of the defendants, to the action of the Court below, in allowing James D. G-ilmour, one of the witnesses examined before the auditor, to appear in open Court, and there to correct his previous testimony, by answering over a particular interrogatory, propounded by the direction of the Court. This is a practice not very often resorted to, and is one of great delicacy, because of its being liable to abuse. If, however, the Court is entirely satisfied, upon a preliminary examination of the witness, that there is a real mistake, and that there is no collusion, it will permit, what was done in this case, the witness to correct his testimony. For this there are many precedents in the hooks. Byrne vs. Frere, 1 Moll., 396; Kirk vs. Kirk, 13 Ves., 286; Denton vs. Jackson, 1 John. Ch., 526; Gray vs. Murray, 4 John. Ch., 413; 2 Danl. Ch. Pr., 1151. But from the determination of such a question by the Court below, no appeal will lie ; for that Court must, in the nature of things, be the best judge of the propriety of granting or refusing such an application.

Having thus gone through the case, and passed upon all the questions raised for decision in this Court, it results, from what we have said in regard to some of the exceptions, that the order appealed from must he reversed; and upon such reversal the cause will he remanded, to the end that the Gourt below may pass an order referring the case hack to the special auditor, with directions to state accounts in accordance with the foregoing opinion. The costs of both appeals in the present record to be paid out of the fund.

(Decided 29th April, 1875.)

Order reversed, and cause remanded.