Charles v. Sheriff

• Decision Date: 20 July 1858
• Citation: Charles v. Sheriff, 12 Md. 274 (Md. 1858)
• Parties: NEGROES CHARLES and others, v. DIONYSIUS SHERIFF, Exc'r of H. H. WARING, and others.
• Court: Maryland Court of Appeals

12 Md. 274

NEGROES CHARLES and others, v. DIONYSIUS SHERIFF, Exc'r of H. H. WARING, and others.

Court of Appeals of Maryland.

Jul. 20, 1858

Negroes manumitted by a will have the right to file a bill in equity, asking that court to marshal assets, in order to procure proper evidence to enable them to prosecute their petition for freedom, and to decide whether the real estate is charged with the payment of debts in favor of the bequest of freedom, and on such a bill are entitled to an injunction, restraining the prosecution of their petition for freedom, and the executor from paying pecuniary legacies, and judgment creditors from selling them under execution, until these questions are settled.

It is no objection to such a bill for an injunction that it is not verified by affidavit, the negroes being incapable of making such an affidavit, and the production of an authenticated copy of the will being sufficient; it is not indispensable in all cases, that a bill for an injunction should be sworn to; all that is required is, that the confidence of the court should be obtained, and this may be had on documentary evidence as well as on affidavit.

Nor is it any objection to such a bill that no injunction bond was tendered, for no bond could be tendered until the court fixed the amount of the penalty, and if the court had granted the injunction, it would have done so, on condition that a prescribed bond should be first filed.

APPEAL from the equity side of the Circuit Court for Prince Georges county.

This appeal is taken from an order of the court below refusing to grant an injunction upon a bill filed by the appellants.

The record shows that Henry H. Waring, by his will, executed on the 28th of May 1853, and admitted to probate, on the 22nd of August 1854, devised and bequeathed as follows: " After my debts and funeral charges are paid, I devise and bequeath as follows: Item.It is my will and desire that at my death all my slaves, as follows, Charles, Sylvester William, Hanson, Albert, Washington, Laura and Henry, shall be free, and that my executors hereinafter named, shall immediately after my death remove them from the State of Maryland to the District of Columbia, or some free State, and make the necessary provisions out of my personal estate, for their comfortable support for the space of twelve months from my death.Item.I will and desire, that immediately after my death, my executors hereinafter named shall sell the farm on which I now reside called Waring's Lot, and the money arising from the sale, I will and devise shall be applied to the payment of the following legacies," viz., legacies of various sums of money to different named relatives." Item.I give, devise and bequeath, all the rest and residue of my estate both real and personal, to be equally divided between my four nieces,"(naming them,)" and my two nephews,"(naming them,)" in equal portions share and share alike."He then appoints two executors, one of whom is the appellee, Sheriff, to whom letters testamentary were granted by the orphans court, on the 24th of August 1854.

On the 10th of April 1858, the negroes thus manumitted by this will filed their bill in the present case against the executor, the pecuniary and residuary legatees under the will, and also against certain persons named in the bill, as judgment creditors of the testator.The object of the bill was to obtain an injunction, to restrain the further trial of a petition for free dom, instituted by the complainants, and then in progress of trial, and also to restrain certain of the judgment creditors from selling the complainants then levied on under executions, and that the assets of the estate may be marshalled, and the respective rights of the several parties interested adjudged, so as to enable the complainants, on the trial of their petition for freedom, clearly to establish the true condition of the estate and their relation to it.The allegations of this bill are sufficiently stated in the opinion of this court.There was no affidavit to it, and no injunction bond tendered or filed.The court below, (Crain, J.,) refused to grant the injunction prayed for, being of opinion that the bill did not make " such a case as will justify a court of equity to interfere and delay the creditors in the payment of their just debts."From this refusal the complainants appealed.

The cause was argued before LE GRAND, C. J., ECCLESTON and BARTOL, J.

Daniel C. Digges and Thos. G. Pratt for the appellants:

1st.The case, as made by the bill, was a fit case for the interposition of a court of equity.In the case of Cornish vs.Wilson, 6 Gill, 299, it was clearly decided, that slaves manumitted by a will, have the right to file a bill in equity, for the purpose of having the assets marshalled, in order to obtain evidence in the trial of their petitions for freedom that their manumission was not in prejudice of creditors, and also to have the aid of that court in determining whether the real estate has been charged with payment of debts to their exoneration.The right of such parties to proceed in equity, is also sustained by the case of Peters vs. Van Lear,4 Gill, 249.These cases then have decided, that manumitted negroes may file a bill in equity, for an injunction to restrain creditors and the executor from selling them to pay debts, until the true condition of the estate is determined.Such a bill need not be supported by the affidavit of the complainants, for such complainants can make no affidavit, and this was the well known law when the decisions above referred to were made.Nor could they give an injunction bond, nor is such bond necessary.All that a court of equity requires in order to grant the writ is, that sufficient proof be tendered to satisfy the court of the propriety of its action, and this may be done by documentary proof as well as by affidavit.3 Bland, 162, Salmon vs. Clagett.1 Bland, 180, Jones vs. Magill.Alexander's Ch. Pr., 80, 81.The will which was produced and filed as an exhibit with the bill, clearly showed the manumission of the complainants, and the grounds upon which their claim for relief was based.The bill therefore having been properly filed, it is insisted, that the complainants are entitled to the relief asked for thereby.

2nd.Because the testator clearly intended, that in no event should the complainants be sold as slaves to pay his debts, as he charges his personal estate for their support as free persons, and as, by the residuary clause of the will, he manifestly supposed that his other personal property and land would be more than enough to pay debts and his pecuniary legatees.2 Wms. on Excrs., 1448. 1 Merivale, 229, Bootle vs. Blundell.

3rd.Because the entire estate of the testator should be exhausted to pay his debts before these manumitted negroes could be divested of their right to freedom.Act of 1796, ch. 67, sec. 13. 7 G. & J., 96, Allein vs. Sharp. 4 Md. Rep., 351, Magruder & Tuck, vs. Carroll. 1 Md. Ch. Dec., 296, Thomas vs. Wood.

4th.Because the bequest of freedom to the appellants was a specific bequest, and they, as such legatees, are entitled as against the heirs at law, the personal representatives of the testator, and the pecuniary and residuary legatees, to have the whole estate exhausted before their specific legacy can be interfered with.2 H. & G., 7, Negro George vs. Corse,(Opinion of Archer J.)6 Gill, 328, Cornish vs. Wilson.11 G. & J., 185, Chase vs. Lockerman.8 Gill, 321, Spencer vs. Negro Dennis.1 Story's Eq., sec. 577. 2 Wms. Excrs., 992. 4 Ves., 748, Kirby vs. Potter, note (a.)2 Ves. Jr., 639, Coleman vs. Coleman, note (a.)

5th.Because, assuming that the pecuniary legacies under this will are also to be considered as specific, there is no principle of law or equity which would make the residue of the testator's debts payable exclusively by these appellants, but that in any event they would be required only to contribute to their payment, ratably with all other specific legatees.2 Jarman on Wills, 393. 6 Gill, 301. 11 G. & J., 185. 1 Merivale, 229.

Samuel H. Berry...