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will of William Prescott Webb, and praying for an order of court directing its payment to them. The appellees answered the petition, admitting that they were directed by the will of William Prescott Webb to pay the legacy of $5,000 to the petitioner's intestate, Wilbur M. Webb, but insisting that they could not be compelled to pay it "before the time when the said Wilbur Morrison Webb would have reached the age of twenty-one years." The circuit court, upon a hearing of the matter, refused to direct the payment of the legacy, and passed an order dismissing the petition. From that order the present appeal was taken.

We think the learned judge below erred in his action on this petition. The appellees do not, in their answer, deny that they have the $5,000 in their hands, or assert that the fund held by them for the payment of the legacies to the grandchildren is so invested, or in such condition, that it would be inconvenient or disadvantageous to raise the $5,000 with which to make the payment, nor do they suggest any other reason for declining to make it than the inability, in their opinion, of the appellants, to compel it to be made before the time when the legatee, if living, would have reached his majority. It is not necessary, in this connection, to repeat in detail the provisions of the will by which the legacies to the grandchildren were given. When that instrument was before us in the case in 92 Md., 48 Atl., and 84 Am. St. Rep. we distinctly decided, as we have already said, that those legacies were vested, and bore interest from the death of the testator, and that the provisions of the will in reference to the time of their payment were not of the substance of the gift, but related merely to its enjoyment. The authorities agree that, where a vested legacy, not charged upon land, is given to a child, to be paid at his majority, and interest is payable thereon in the meantime, if the legatee die under age his representative will be entitled to the immediate payment of the legacy; but, if no interest be payable on the legacy, the representative must wait until the legatee would have come of age if he had lived. Roper on Legacies, vol. 1, *871; Williams on Exrs., vol. 2, *1254; Crickett v. Dolby, 3 Ves. Jr. 13; Trustees of Jacobs v. Bull, 1 Watts, 372, 26 Am. Dec. 72; Felton v. Sawyer, 41 N. H. 213; McReynolds v. Graham (Tenn.) 43 S. W. 138; Bowman's Appeal, 34 Pa. 19; Am. & Eng. Encycl. of Law (2d Ed.) vol. 18, pp. 792, 793. In most of these cases interest was made payable on the legacy during the minority of the legatee by the terms of the will, but in Bowman's Appeal, supra, the legacies were given, as in the present case, to the grandchildren of the testator, to be paid on their respectively coming of age, and no disposition of the interest in the meantime was made. The court there held that as the testator, under the circumstances of that 54 A.-5

case, stood in loco parentis to the legatees, they were entitled to interest from his death, and then applied the rule to which we have referred to the case of one of the legatees who died under age, and ordered the immediate payment of the legacy to the personal representative of the legatee. The Maryland cases relied on by the appellees are not in conflict with the rule. In Keerl v. Fulton, 1 Md. Ch. 535, the decision that the representative of the deceased minor legatee must wait for the legacy until the child would, if living, have attained its majority, was put upon the express ground that interest was not payable upon the legacy during the minority of the legatee; and the case of Crickett v. Dolby, supra, was cited by the court as an authority for its decision. The cases of Hinkley v. House of Refuge, 40 Md. 469, 17 Am. Rep. 617, and Wehrhane v. Safe Deposit Co., 89 Md. 179, 42 Atl. 930, presented questions of the acceleration of remainders in one instance by the death of the life tenant and in the other by the renunciation of the widow. The court in each of those cases admitted that under ordinary circumstances the acceleration of the legacy there under consideration would have occurred, but held that by reason of the special terms of the wills creating these legacies such a result would contravene the inténtion of the testator, and therefore held that no acceleration took place.

The direction to the appellees, as executors, to pay the legacies at such time as they might find it convenient, appearing in the will in the present case, referred to the exigencies of the settlement of the estate, and did not confer upon them any arbitrary or capricious power to delay payment. It appears from the proceedings that they turned the money over to themselves as trustees some time ago, and they do not suggest that it would prejudice the estate in any manner to make an immediate payment of the legacy now in question, but rest entirely upon the want of title in the appellants to receive it. at this time. We think the appellants are entitled to receive the legacy now. The order appealed from will be reversed, and the case remanded for further proceedings in accordance with this opinion.

Order appealed from reversed, with costs, and case remanded for further proceedings in accordance with this opinion.

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the mode in which the estate shall be invested for the best interests of the remaindermen. Held that, where a married woman died intestate leaving children, and owning a judgment, which at her death was uncollectible, but which, several years after, her administrator collected, the husband was not entitled to interest accruing thereon between the date of his wife's death and the collection of the judgment, but was only entitled to the income of the fund remaining after paying debts and expenses of administration.

Appeal from orphans' court, Montgomery county; Samuel D. Waters and Geo. W. Meem, Judges.

Final accounting by Samuel Hersperger, as administrator of Hannah Hunter, deceased. From an order directing the administrator to invest the surplus of the estate, which included interest accruing on a judgment subsequent to decedent's death, Thomas Hunter appeals. Affirmed.

Argued before MCSHERRY, C. J., and FOWLER, BRISCOE, BOYD, PAGE, PEARCE, SCHMUCKER, and JONES, JJ. Wm. H. Surratt, for appellant. Edward C. Peter, for appellee.

BOYD, J. This is an appeal from an order of the orphans' court of Montgomery county directing the administrator of Hannah Hunter to invest the amount remaining in his hands, after payment of the debts and costs, and to pay the income to the appellant during his life, and after his death to the children of Hannah Hunter, who was the wife of the appellant, and died intestate, leaving four children surviving her. We have had some doubt about the propriety of passing on the question which has been argued before us, as it is not presented by the record in a way which we can approve of, as the facts necessary to be considered are in an agreement of counsel filed in the orphans' court a month after the order appealed from was passed. But as it states that, "The following is the agreed statement of facts upon which the order of the orphans' court for Montgomery county dated July 22, 1902, was passed," and, as the question has been argued without objection as to the method of presenting it, we will determine it, but do not want it to be considered as a precedent binding on us in the future. When a case is heard on an agreed statement of facts, it should be reduced to writing, and filed in the lower court before the case is there disposed of, or the facts should be certified to this court by the lower court in such way as will enable us to know with certainty what that court understood was before it, and what it passed on.

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From the statement of facts we find that Hannah Hunter died on the 26th day of May, 1897, and Samuel A. Hersperger was appointed administrator of her estate on the 7th of the following August. At the time of her death she was the owner of a judgment for $1,173, rendered March 17, 1879, in the circuit court for Montgomery county, which

"had been kept alive by appropriate proceedings, and was still in full force and effect, but which judgment was at the time of her death worthless." On the 12th of May, 1902, the administrator collected it, amounting at that time to $3,375.25, including $7.45 costs, "said judgment having been collected at the earliest possible date." The statement of facts does not show why it could not be collected sooner, but it was said at the argument that the judgment debtor inherited some property, which enabled the administrator to recover it. The administrator settled an account on July 12, 1898, and on the 22d of July, 1902, he settled another, in which he distributed the proceeds of this judgment; the debts of the decedent and the commissions, costs, etc., amounting to $1,622.07, leaving in his hands $1,753.18 for distribution. The record does not disclose how so much was realized on the judgment, but the brief of the appellant states that on March 17, 1891, the amount of the judgment was $2,017.56, and interest was apparently collected on that sum from that date to May 12, 1902, when it was paid; but, as the amount that was due on the judgment is not before us for review, that is not material. The question intended to be presented is whether the appellant is entitled to interest on this judgment from the date of the death of Mrs. Hunter. He contends that under the statute he was a tenant for life of his wife's personal estate, and, as the judgment was bearing interest until paid, that he was entitled to all such interest as accrued after her death; the principal and interest to that time being more than sufficient to pay her debts and the cost of the administration.

The statute in force at the time of her death was section 32 of article 93 of the Code, as amended by chapter 571 of the Acts of 1892. That provided that, if the intestate be a married woman, and leaves no child or descendants, all her personal property, including choses in action, shall devolve upon her husband absolutely, and it shall not be necessary for him to administer upon her estate in order to pass title to him, unless she shall be liable for debts owing by her; and, after making provision as to how the husband is to get title to the property in such case, it proceeds: "But if the intestate be a married woman, and leave a child or children or descendants, her personal estate including all choses in action shall devolve upon her administrator or administrators, and the surplus of her estate shall be distributed by the orphans' court to the husband for his life and no longer, and after his death then to her children and descendants per stirpes; and it shall be the duty of the orphans' court granting the said administration to direct the mode in which the said estate shall be invested [statute reads "interested"] so as best to serve the rights of children or others interested after the ex

piration of the life estate; and the whole of the said personal estate shall be subject to the orders of the orphans' court, and shall not be disposed of by the administrator except by virtue of an order or a decree duly passed by said court." The appellant, in support of his contention, cited Evans v. Iglehart, 6 Gill & J. 171; Merryman v. Long, 49 Md. 545; Abell v. Abell, 75 Md. 44, 23 Atl. 71, 25 Atl. 389; Wethered v. Safe Deposit & Trust Company, 79 Md. 153, 28 Atl. 812; and Burt v. Gill, 89 Md. 145, 42 Atl. 968, 43 Atl. 177,-but in each of those cases the decedent left a will, and, while questions as to when interest should begin to run on various kinds of legacies and when incomes should be paid to life tenants were considered, the familiar principle that such questions must be governed by the intention of the testator, when that can be ascertained from the will, was fully recognized and applied. In this case the only right that the appellant has to any part of his wife's personal estate is given him by the statute, and hence we must look to it to ascertain what that is; and when we do we find that it says in plain terms that "the surplus of her estate shall be distributed by the orphans' court to the husband for his life, and no longer, and after his death then to her children and descendants per stirpes." The only portion of her estate he is thus entitled to is the surplus during his lifetime. That is to be distributed by the orphans' court to him for life, and after his death the same thingthat is to say, the surplus--is to be distributed to the children and descendants. If the legislature had intended that he should receive interest earned before that distribution was made, it would doubtless have said so; but the statute not only limits the right of the husband to the surplus,-which means that part of the estate which is left after the debts, costs, etc., are paid,—but it makes it the duty of the orphans' court "to direct the mode in which the said estate shall be invested, so as best to serve the rights of children or others interested after the expiration of the life estate"; thus showing that the legislature was endeavoring to carefully guard the rights of the children, and there is nothing in the statute to justify an inference that it was intended that the surplus should be depleted by deducting interest from the wife's death, or any other period, from it. After the debts and expenses connected with the administration are ascertained, the surplus should be distributedor, more properly speaking invested-promptly, so as to give the husband the benefit of the income therefrom; but there must necessarily be some delay in the settlement of estates. In this case the final distribution was not made until over five years after the death of the intestate, but, as we have seen, the judgment was considered worthless, and was "collected at the earliest possible date." No one, therefore, is to be blamed for the

delay, and, although the right to collect the judgment was vested in the administrator from the time of his qualification, it was im possible to do so before he did. He received the money on the 12th day of May, 1902, and stated an account in June, which was finally acted on by the court on the 22d of July, after giving parties in interest an opportunity to be heard. We are of the opinion that the order of the court below was in accordance with the terms of the statute, and must, therefore, be affirmed, but we will direct the costs of the appeal to be paid out of the fund.

Order affirmed, costs to be paid out of the fund.

(96 Md. 247)

NEWBOLD v. HAYWARD et al. (Court of Appeals of Maryland. Jan. 14, 1903.) TRIAL-EVIDENCE-DIRECTING VERDICT.

1. In passing on an instruction withdrawing plaintiff's case from the jury, the court must assume the truth of all the evidence tending to sustain plaintiff's claim, and all inferences of fact fairly deducible from it, even though such evidence may be contradicted in every particular by opposing evidence.

2. Where the evidence as to whether there has been a waiver of a demand is directly conflicting, there is an issue of fact, which should be submitted to the jury.

Appeal from superior court of Baltimore city; John J. Dobler, Judge.

Action by David M. Newbold against Thomas J. Hayward and others. From a judgment for defendants, plaintiff appeals. Reversed.

Argued before McSHERRY, C. J., and FOWLER, BRISCOE, BOYD, PAGE, PEARCE, SCHMUCKER, and JONES, JJ.

John Prentiss Poe and Thomas Ireland Elliott, for appellant. John E. Semmes, for appellees

BRISCOE, J. The pleadings in this case are voluminous, but, as the questions presented by the appeal arise upon the rulings of the court on the prayers, we deem it unimportant to set them out in full, but shall refer to them in so far as it may be necessary for the purposes of this decision.

The suit was brought by the appellant against the appellees to recover for the breach of an alleged contract whereby the latter were to deliver to the former certain shares of the capital stock of the City & Suburban Railway Company of Washington, under an alleged contract of guaranty given by them to the Baltimore Trust & Guaran tee Company. The basis of the action is the alleged guaranty, as contained in the following letters:

"Baltimore, August 25, 1898. Mr. N. P. Bond-My Dear Sir: As I understand it, Hayward, Parr, Scott, and yourself guaran ty to the Davidson Co. that the amount of the bonds underwritten by them will complete the City & Suburban enterprise in

Washington in conformity with the contract with them; and, should it fail to do so, then you four gentlemen are to make it good. To the extent of %, which would be my proportion, I am willing to accept the same risk they do. Of course, if there are others in this guaranty, it lessens my responsibility and pay in like proportion of whatever we get for this guaranty; it being distinctly understood that, for assuming such risk, adequate compensation be allowed us. Please communicate this to the gentlemen interested. Respectfully, D. M. Newbold."

"Baltimore, September 24, 1898. D. M. Newbold, Es'r., Baltimore-Dear Mr. Newbold: Referring to your letter of August 25, 1898, addressed to Mr. Bond, I beg to say that it is understood that you assume the same liability as any one of the guarantors, and that you shall share equally with them any compensation which may be allowed them for entering into the contract of guaranty. Yours truly, T. J. Hayward, for Guarantors."

Briefly stated, the facts out of which the controversy arose are as follows: On or about the 11th day of October, 1897, a corporation was formed in the city of Baltimore called the Baltimore Security & Trust Company; the appellant and appellees being the principal stockholders. The object and purpose of its incorporation was to purchase an option on the Columbia & Maryland Railway. Shortly after the incorporation it purchased this railway, which at the time included a majority of the capital stock of the City & Suburban Railway of Washington. Subsequently the stock of the security company was increased, and the Baltimore Trust & Guarantee Company, a corporation of the city of Baltimore, purchased the bonds of the City & Suburban Railway under an agreement and guaranty on the part of certain directors of the security company that the proceeds of the bonds would be sufficient to convert certain street horse car railways of the City & Suburban road into electric roads. The enterprise proved very successful, and shortly afterwards a stock dividend of $4.50 in stock of the City & Suburban Railway for each dollar paid into the security company was distributed among the holders of the stock of the security company, after the payment for certain services rendered to the company.

The appellant contends (1) that he was equally liable as guarantor to the Baltimore Trust & Guarantee Company, and that, under the contract, he was entitled to share in the compensation and profits; (2) that the guarantors entered into a contract with him to share the responsibility of the guaranty, and, in consideration thereof, promised to pay him; and (3) that the defendants have been paid by the security company for their services, but have refused to pay him. The appellees, on the other hand, contend, as stated in their brief, that they never received any

compensation for the guaranty, and that a resolution was introduced by the plaintiff, and voted for by him, at the directors' and stockholders' meeting, under the terms of which the guarantors were required to release the security company from all liability, which the majority of the guarantors were unwilling to do, and that the guarantors were not entitled to compensation; and they deny the liability claimed by the appellant.

At the trial below, the plaintiff offered 5 prayers, all of which were refused. The defendants offered 12 prayers. All of these were rejected, except the first and second. It will be thus seen that the questions for our consideration arise upon the rulings of the court on the rejection of the plaintiff's prayers, and the granting of the defendants' first and second prayers, and to a special instruction given by the court. The defendants' prayers, as granted, and the special instruction of the court, practically withdrew the case from the jury. These prayers were in the nature of a demurrer to the evidence, and were a concession of the material facts, but a denial of their legal sufficiency.

We have carefully examined the record before us, and think that the plaintiff was entitled, under the facts in the case, to have the evidence submitted for the consideration of the jury, and the court committed an error in withdrawing the case. In Jones V. Jones, 45 Md. 154, it is said that before a prayer can be granted, withdrawing a case from the jury, the court must assume the truth of all the evidence before the jury tending to sustain the claim or defense, as the case may be, and all inferences of fact fairly deducible from it, as on demurrer to the evidence; and this though such evidence be contradicted in every particular by the opposing evidence, in the cause. The defendants' first and second prayers were therefore erroneous, and should have been rejected. Roberts & Co. v. Bonaparte, 73 Md. 207, 20 Atl. 918, 10 L. R. A. 689.

The special instruction given the jury by the court raised the questions of waiver and demand. It is as follows: "The plaintiff, having offered at the directors' meeting held October 5, 1898, the resolution which led to the passage of the resolution of the subsequent stockholders' meeting, read in evidence, thereby waived his right to insist upon his claim to the 400 shares of stock in the City & Suburban Company, as his proportion of the compensation for the guaranty entered into by the defendants; the condition contained in said last-mentioned resolution never having been complied with on the part of the defendants. And by this failure to make any demand during the period of the responsibility of the defendants under said guaranty, either upon the security company or upon the defendants, for any other measure of compensation for his undertaking with them, he must be held to have acquiesced in the position of the de

fendants with respect to their compensation for such guaranty; and, since the evidence fails to show that the defendants have received any compensation for said guaranty, the plaintiff cannot recover in this action." As to the question of waiver presented by the prayer, we need only say there was a question of fact to be submitted to the jury, and the court erred in assuming the fact. McGrath v. Gegner, 77 Md. 339, 26 Atl. 502, 39 Am. St. Rep. 415; Herzog v. Sawyer, 61 Md. 354; Bollman v. Burt, Id. 422-423. There was evidence tending to show that a demand had been made upon the defendants under the contract of guaranty, and also evidence tending to show that the defendants had received compensation for the guaranty. These were material facts, and should have been left to the jury. The plaintiff was clearly entitled to have the jury pass on facts of which contradictory evidence had been given. There was error in granting this instruction.

This brings us to the consideration of the plaintiff's prayers, which, with those offered on the part of the defendants, but not considered by the court, cover 11 pages of the record. We do not deem it necessary to consider them seriatim, but think they were all properly rejected, under the circumstances of the case. Conceding that they submitted the correct theory of the plaintiff's case, they at the same time excluded from a consideration of the jury the material facts relied upon by the defendants in support of their defense to the action. These prayers were misleading, as tending to emphasize certain portions of the evidence to the exclusion of other evidence in the case, and specially excluded and ignored the question of waiver and other defenses made by the defendants to the suit.

For the reasons we have given, the judgment must be reversed, and a new trial awarded. Judgment reversed and new trial awarded, with costs.

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1903.) GROUND RENT-APPORTIONMENT BY LEASEHOLDERS-ESTOPPEL-MERGING OF FEE-EXTINGUISHMENT.

1. Where the owners in common of an estate subject to a ground rent partitioned the land among themselves, leaving, however, certain lots undivided, the rental of which was specially appropriated by the partition deed to the ground rent of the whole estate, such appropriation, as between the parties and those claiming through them, exonerated the residue of the property from the ground rent.

2. Where certain of the parties to the partition deed subsequently purchased the fee or reversion to the whole estate, the estoppel arising from the partition deed also bound them, as owners of the reversion, from asserting that any of the property except that specially appropriated thereto was subject to the ground reut, Especially when they, as owners of the rever

sion, recited such apportionment in a deed designed to extinguish the ground reut.

3. The purchasers of the reversion attempted to extinguish the ground rent by an agreement with B., who had become the owner of the undivided interest not owned by the purchasers of the reversion in the lots apportioned to meet the ground rent, and who was also the owner of all the partitioned portion of the estate not owned by them, except certain lots which he and another held as trustees. The agreement failed to include as trustees either B. or his co-trustee. Held, nevertheless, that the agreement extinguished the ground rent on the lots held in trust, since by the partition deed the purchasers of the reversion were estopped to assert the ground rent against any of the property except that apportioned thereto, and since the whole interest in such apportioned property was inIcluded in the agreement.

Appeal from circuit court of Baltimore city; Pere L. Wickes, Judge.

Bill by Thomas H. Rose and others against T. Milton Jones. From a decree in favor of complainants, defendant appeals. Affirmed.

Argued before McSHERRY, C. J., and FOWLER, BRISCOE, BOYD, PAGE, PEARCE, SCHMUCKER, and JONES, JJ.

Parker & Staum, for appellant. Gans & Haman, Vernon Cook, and Stuart S. Janney, for appellees.

MCSHERRY, C. J. This case was commenced by a bill in equity, which was filed to enforce specifically the performance of a contract for the sale of a lot of ground lying in Baltimore city. The contract is admitted. The purchaser refused to accept the title and to pay for the property solely because it is alleged that the vendors are not the owners of the fee, and it is insisted that they are not the owners of the fee by reason of there being an outstanding ground rent charged upon the lot. The case was tried upon an agreed statement of facts. Circuit court No. 2 decreed that the purchaser should forthwith bring into court the purchase money stipulated to be paid, and that the plaintiffs should then convey the property to him. From that decree this appeal was taken.

Have the vendors a fee-simple title? If there is no outstanding ground rent on the premises, they confessedly have such a title. So the only question is, is there an outstanding ground rent on the property? That question must be solved by an examination of the various conveyances set out in the record, and this is neither a very interesting nor a very exciting task. Prior to the year 1834 the leasehold estate in a parcel of land lying in Baltimore city became vested in George and Peter Hoffman as tenants in common. The property was subject to twoground rents,-the one created in 1775, for £3 sterling; and the other in 1794, for £16 current Maryland money,-the two together aggregating about $56. George Hoffman died in 1834, leaving a last will and testament; and Peter Hoffman died in 1837, also leaving a last will and testament. In 1846 the devisees of George and Peter partitioned

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