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ROGERS v. LAW.

December 1, 1861

ROGERS
v.
LAW.



Appeal from the decree of the Circuit Court of the United States for the District of Columbia. This was a proceeding for the distribution of the estate of Thomas Law, deceased, among his creditors and legatees. The same cause was here before, and is reported as Adams et al. vs. Law, in 17 Howard, 417. It was then remanded, and was further proceeded in according to the opinion of this court. The questions which arose afterwards were on the following claims: 1. Lloyd N. Rogers made a claim as creditor for money lent in 1822. It was not shown that this debt had ever been demanded of the decedent in his lifetime, nor or his executors before 1855.

The opinion of the court was delivered by: 2. Lloyd N. Rogers also claimed as creditor under the deed which will be found described in the opinion of Jr. Justice Nelson.

3. The two children of Lloyd N. Rogers and the administrator of a third one, deceased, (grandchildren of the testator,) claimed legacies of $8,000 each. These legacies were given upon the condition that the legatees should not claim or demand, sue for, or receive any portion of the testator's estate under certain deeds mentioned and described in the will.

Mr. Mason Campbell, of Maryland, for the appellants. 1. The fact of the loan by Mr. Rogers to Mr. Law in 1822 is established; the only objection worthy of notice is that arising our of the lapse of time. The statute of limitations is not interposed by the residuary legatee, but by Mr. May, administrator of two specific legatees. They have no interest in the question. Enough will be left to pay them, whether this claim be allowed or not. But by the law of Maryland (which is the law of the District) it can be set up only by the executor, who in this case has not pleaded it. Bowling vs. Lamar, (1 Gill, 362;) Spencer vs. Spencer, (4 Mar. Ch., 465.)

2. The validity of the claim of Mr. Rogers under the deed to Calvert and Peter was affirmed by this court on the first appeal; but assuming that it was not, it should be affirmed now. The auditor has overlooked the evidence on this point, which shows that the value of the property secured to Mrs. Rogers by that deed was $36,552 45; and Mr. Law's covenant pledged his estate to an equal amount.

3. The claims of the legatees were erroneously rejected by the court. In this the court committed the grave error of supposing that the case one of election. The claims of these legatees, under the deeds mentioned in the will, are as creditors, and creditors are never put to an election. Kidney vs. Coussmaker, (12 Ves., 154;) Deg vs. Deg, (2 P. Wms., 418;) 2 Wms. on Exrs., 888; 2 Story Eq., § 1075. The doctrine of election is wholly inapplicable here. It is founded altogether upon an implied condition that he who accepts a benefit under an instrument must renounce all inconsistent benefits, and as the courts imply the condition they give the party affected by it his right of choice between the two. 1 White's Lead. Cas. in Eq., 233. But where the testator himself expresses the condition none can be implied, and such is this case. This condition has not been broken. Eliza P. Rogers, one of the legatees, died under age and unmarried, and never received a dollar. The acts of her brother and sister cannot affect her interests. Ward on Legacies, 139. The other two legatees claimed nothing prior to this suit. What they claimed here was declared by this court to be without foundation. The other claims, under the marriage settlement, are made exclusively by their father. There has been no money received by any of the family from Mr. Law's estate, on any of the accounts interdicted by him. Suppose, however, the condition to have been broken, there is no bequest over, and so the condition is merely in terrorem, and will not work a forfeiture. 2 Wms. on Exrs., 790; 2 Jarm. on Wills, 46; Ward on Legacies, 139; Wheeler vs. Bingham, (3 Atk., 368.)

Mr. May and Mr. Brent, of Maryland, for appellees. 1. Mr. Rogers withheld his claims, as creditor, until this cause was remanded. His claim for money lent to Mr. Law in 1822 is altogether stale. The plea of limitations is sufficiently relied on by the residuary devisee, and the auditor so reports. This is sufficient in equity. McCormick vs. Gibson, (3 Bl., 499;) 1 Mary. Dig., 411; Binney's case, (2 Bl., 99;) Warfield vs. Banks, (11 Gill & Johnson, 98.) It is true that in actions by creditors against the executor or administrator, in respect to personal estate, the statute can be pleaded only by the personal representative. But this contest practically relates to the proceeds of Mr. Law's real estate. Besides this, the objection of staleness need not be made by exception or plea. Lingan vs. Henderson, (1 Bl., 236;) Salmon vs. Clagett, (3 Bl., 125;) 1 Md. Dig., 441; Hepburn's case, (3 Bl., 95;) 2d Md. Ch. Dec., 231.

2. These remarks apply equally to Mr. Rogers' claim under the deed, and that claim must also fail on its merits. Mr. Law did not covenant to pay any sum until he had notice of the ascertained value of the funds received by Peter and Calvert, as trustees for the use of his daughter. There is no proof which tends to show that any property ever came to the trustees for the purposes of that trust. Nor is there any proof of his ever having had the enjoyment of the residuum of his wife's trust estate, for which he had stipulated.

3. It is too clear for argument that the testator designed to give those legacies to his grandchildren, on the express condition that neither they nor any one of them should claim anything our of his estate by reason of those deeds. Such an intention is legal. 6 Page, 388; 1 Eden., 492; 2 Amb., 157; 8 Gill, 203; 5 Md. Rep., 306; 2 Gill, 181.

Mr. Justice NELSON.

This is an appeal from a decree of the Circuit Court of the Unites States for the District of Columbia.

The appeal is from a decree of the court below, entered there upon the going down of the mandate of this court, in pursuance of its decision when the case was formerly here, on an appeal by the executor and trustee of the estate of Thomas Law, the settlement of which is the subject of litigation.

The case is reported in the 17 How., 417. This court reversed so much of the decree in the court below as gave to the grandchildren of the testator by Eliza, his daughter, wife of Lloyd N. Rogers, an interest, under certain limitations, in the deed of marriage settlement of the 19th March, 1796, amounting to the sum of $66,154 81, and affirmed the residue of said decree. This sum, by the decision, fell, of course, into the residuum of the estate of Law, for distribution among the creditors, legatees, and distributees.

When the case came again before the auditor appointed by the court below, several claims were presented for allowance, which were heard and examined by him, and his decision thereon reported to the court; and, after exceptions and argument, the report was confirmed. These several claims are now the subject of review by this court, upon the present appeal.

The first is a claim by Lloyd N. Rogers, as a creditor of the estate, and is founded upon an alleged loan of money to the testator, Law, as early as 1822. This claim was rejected by the auditor, upon the ground the proofs were not satisfactory that the loan had ever been made by Rogers. The lapse of time, also, since it was alleged to have been made, some thirty-three years, without, for aught that appears, presenting it to the testator in his lifetime, or ...


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