Wootten v. Burch

2 Md. Ch. 190

• Court: High Court of Chancery of Maryland
• Decided: March 15, 1851
• Status: Published

Opinion

The Chancellor :

It is a well established rule of chancery pleading, that if a defendant answers, he must answer fully to all the charges of the bill; and it is not sufficient, that the answer contains a general denial of the matters charged, but there must be an answer to the sifting inquiries, upon the general subject, and whenever there are particular and precise charges, they must be answered particularly and precisely, though the general answer may amount to a full denial of the charges.

These principles are stated almost in the identical language of Mr. Justice Story, in his treatise on Equity Pleading, sec. 852.

The answer should in general, also, be full to all the interrogatories, founded on the matters charged in the bill, unless indeed they are clearly immaterial. Ibid, sec. 853. And the difficulty of distinguishing, clearly, between material and immaterial interrogatories, is so considerable, that respectable writers have said, that the general rule upon the subject, requires the defendant to answer every question, without reference to whether it is or is not material, and that the court would take care, that the rule shall not be applied in such a way as to be offensive to the parties. See note to section 853.

If this be the general rule, it must, of course, be taken with the qualification, that the matters inquired about, are not purely scandalous, or which would subject the defendant to a penalty, forfeiture or punishment; as in regard to all such matters, he is not required to answer.

Testing the answer of the defendant, William N. Burch, by this rule, and assuming that the charges and interrogatories of the bill, must appear to be material, it seems to me very manifest that the answer is defective.

The bill is filed by some of the representatives of William G. Jackson, deceased, against the defendant as his administrator, with the will annexed, for an account of, and settlement of his personal estate, and charges, among other things, that among the personal property of the deceased, there was a large amount of cash, in the form of silver and other coin, which he had accumulated, the exact amount of which was not known, it having been kept and contained in a close bag, and in the interrogating part of the bill, there is a precise and special interrogatory, founded upon this charge.

In reply to this charge and interrogatory, the defendant says, that letters of administration having been granted to him, he proceeded to discharge his duties, and returned a full and true inventory of all the personal property of the said testator; and charged himself, with all the moneys due and collected, belonging to said estate of the said deceased ; and passed a final account, and that he has charged himself in said account, as administrator, with all moneys due the said deceased, at the time of his death, that were sperate and available.

Now, without remarking upon the words, “due and collected,” and the words, “due the deceased at the time of his death,” which would seem to have reference, not to cash on hand, at that time, but to moneys subsequently collected by the administrator, it is obvious, that this is not a particular and precise answer, to the particular and precise charge in the bill, and the questions founded thereupon.

The bill charges, that when the deceased died, he had in his possession a large amount of cash, in the shape of coin, contained in a bag, and the defendant is specially called upon to say, whether he did not die so possessed, and whether this money was not withheld from the inventory, &c. The answer says nothing upon the subject of coin in a bag, and is, at best, but a general answer, which, even though it may. amount to a full denial of the charge, is not sufficient, as has been shown.

My opinion, therefore, is, that the complainants’ first exception to the answer is well taken, and that they are entitled to a full and precise answer to the particular charges of the bill, and the interrogatories founded upon them.

What has been said upon this exception, applies, likewise, to the second exception, which has reference to the allegations and interrogatories of the bill in regard to the negro slaves.

The bill alleges, that among other property, fraudulently withheld from the inventory, there were a number of negroes, the names, &c. of whom, the complainants have not been able to ascertain; but they have learned, that a female slave called Maria, and a number of her children, who had for a long time been held, and possessed, by the deceased, as his absolute and undisputed right, were at his death, claimed, and seized by one Barbara Jackson, as her own property, that this was done at the instance, and by the influence of the defendant. And special and precise interrogatories, are propounded to the defendant, based upon these charges.

The answer to this is, that the defendant utterly denies the allegations, that the deceased left negro property at the time of his death, or any personal property, not contained in the inventory.

Now, what is this, but a general answer to particular and precise charges, which, as we have shown, will not do. The answer says nothing about the woman Maria, or her children, or the claim of Barbara Jackson, &c., nothing about negro property, held and possessed by the deceased; the denial being simply that he left any negro property, which may mean, that he left none, to which, in the judgment of the defendant, he had title.

I think, therefore, the second exception is well taken, and the remaining exceptions, being founded upon, and growing-out of, the second, must also be considered as well taken, and ruled good.

[The defendant filed an additional answer on the 12th of October, 1849, containing more full and explicit denials of the charges of the bill, both in relation to the cash in the shape of coin and the negroes ; admitting that the testator died possessed of a negro slave called Maria; but, insisting that said Jackson had no title to her, she having been loaned to his (Jackson’s) wife, as a nurse, by her brother.

A commission was issued and testimony taken, and other proceedings had, which will sufficiently appear from the following opinion, delivered at the hearing upon the merits.]

The defendant, Burch, by exceptions to the averments of the bill, denies the complainants’ title to relief, upon the ground, that they rest their claim solely upon the provisions of the will of William G. Jackson, and assert no title as his personal representatives. And, inasmuch as the legatees in remainder, the children of the testator, died in his lifetime, the bequest over to them, upon the death.of Barbara Jackson, the widow, is supposed to have lapsed, notwithstanding the act of 1810, ch. 34, which only applies to cases in which the deceased legatee is warned in the will. Young vs. Robinson et al., 11 Gill & Johns., 328.

The act of 1832, ch. 295, which brings within the operation of the law of 1810, all devisees and legatees, who shall be either actually and specially named in the will, or who are or shall be mentioned, described, or in any manner referred to, or designated, or identified as devisees or legatees, in and by any last will and testament, can have no influence upon this cause ; because, the will bears date, and the testator died prior to its passage.

As, therefore, the bequest over to the children of the testator upon the death of his widow, is supposed to have lapsed, they not being actually and specially named as legatees, and having ■died in his lifetime; and as the complainants in this case, who are the grandchildren of the testator, claim, under his will, as representing their deceased mother, it is insisted, they have no title to the aid of the court; because, they dft claim under the will, and not as the personal representative of their grandfather, under our act of assembly.

But, though the complainants do, by their bill, assert their title under the will of William G. Jackson, and claim relief accordingly, they likewise state every fact necessary to enable them to recover, as his personal representatives.

They allege, that all of his children, with, perhaps, one exception, died in the lifetime of the testator, childless and without having married, with the exception of their mother, Araminta, who had intermarried with one Richard Wootten. And, the proof shows, that all of them did so. die in the lifetime of the testator; and, that the children of the said Araminta, are the only grandchildren. These complainants, with their sisters, are, therefore, by the showing of the bill, the personal representatives of the testator, and entitled as such, to his personal estate, upon the death of his widow, the legatee for life ; and, though the bill does found their title to the interposition of the court, upon the provisions of the will, it by no means follows, they can have no relief, unless they can make out their title under it. The bill states facts, showing the complainants and their sisters to be the personal representatives of their grandfather, and there is a prayer for general relief ; and hence, though they may not be entitled to recover, according to the specific prayer, or the precise character in which they present their claim, there can be no objection to granting them any relief, consistent therewith, warranted by the allegations of the bill.

Now, the allegations of the bill, in this case, are such, as to entitle the complainants to relief, either under the will or as the personal representatives of their grandfather. Their title in the latter capacity is a conclusion of law, founded upon the statements of the bill; and, it is well settled, that when facts are stated, upon which legal conclusions arise, these legal conclusions, need not themselves be stated. Gibson et al. vs. McCormick, 10 Gill & Johns., 65, 108, 109.

My opinion, therefore, is, that upon this bill, the complainants are entitled to relief, as the personal representatives of the testator; provided, the proof in the cause, and the principles of law, applicable thereto, will warrant it.

The testator, by his will, gave to his wife, Barbara Jackson, his whole estate, real, personal and mixed, for and during her life; and at. her death, to be equally divided among his children, and appointed his wife his executrix. She renounced her right to administer, and letters, cum testamento annexo, were granted to the defendant, Burch, who took upon himself the execution of the trust; and, the first question touching the extent of the complainants’ title to recover, is, how far the bequest to the widow for life, vested in her the absolute right to the property which it is conceded the testator left.

It is no longer an open question in this state, that when money, or personal property, whose use is the conversion into money, is either specifically given to one, for life, by a will, or is included in the bequest of a general residue, an investment thereof must be made by the executor, in some safe and productive fund, so as to secure the dividends to the legatee for life, and the principal after his death, to the legatee in remainder. Evans et al. vs. Iglehart et al., 6 Gill & Johns., 172. “If,” say the Court of Appeals, in the case referred to, “the surplus or residue thus bequeathed, consists of money or property, whose use is the conversion into money, and which it could not, for that reason, be intended, should be specifically enjoyed, nor consumed in the use, but be by the executor converted into money, for the benefit of the estate, an investment thereof must be made,” &c.

But if, on the contrary, the property bequeathed is such, that its use is its consumption, the legatee for life, takes the absolute and entire interest, and the legatee overgets nothing.

In this case, my opinion is, that the articles embraced in the inventory, and accounts returned.by the defendant, Burch, except the money and choses in action were of that perishable nature, that their use necessarily involved their consumption; and, therefore, the legatee for life took the absolute property in them.

Brice T. B. Worthington for Complainants. Clark C. Magruder for Defendants.

But, with regard to the money, or choses in action, which have been converted into money, the rule is different, and it was the duty of the defendant to have made an investment thereof; and that, if he has not done so, but has permitted the legatee for life to consume them, or has done so himself, he is liable to these complainants and their sisters, and the case must go to the Auditor, to take the necessary account. I am also of opinion, that there is evidence to show that the testator did leave certain sums of money in coin, which the defendant omitted to include in the inventory; and the Auditor will be directed to charge him, in respect thereof, with such an amount as may be justified by the proof.

The proof, in reference to the negro slaves is, to some extent, contradictory ; but, upon a careful examination of it, I am of opinion, that the weight of evidence is in favor of the title of the testator ; and, therefore, the Auditor will be instructed to charge the defendant, Burch, with the value of the woman Eliza and her services, and, also, with the value of the services of Maria, from the period of the death of Barbara Jackson, in 1843, to the death of Maria, in 1843. The children born during the life of the legatee for life, are her property; and, of course, with regard to them there can be no recovery in this case.

It is, thereupon, ordered, this 12th day of May, in the year 1851, that this case be, and the same is hereby, referred to the Auditor, with directions to state an account, or accounts, in conformity with the preceding opinion, from the pleadings and proofs now in the cause, and such further proofs, if any, as the parties may lay before them.