
    Downes vs. The State, use of Tilden, et ux.
    
    Appeal from Queen-Anne’s County Court. Debt on an administration bond, executed to the state on the 90th of October 1790, by Jacob Clauland, as administrator de bonis non, (Elizabeth Costin, deceased, having been the executrix,) of John Costin, with the will annexed, with John Price, and the defendant, (now appellant,) as his (sureties. The defendant pleaded general performance by Clay!and; also a general performance by Clayland-, in his lifetime, andjby his executrix since his death; to which pleas non pérfonnance was replied, and the breach assign-I I 3 * j , f , i * ■ ed in each replication, was the nonpayment of all that1 part of John Costin'a personal estate which was bequeath» ed by him* after the .payment of his debts, to be equally divided between his wife Elizabeth Coslin, and his two daughters, Sirrah and Ann, and their assigns, for every Dut if either of his daughters should die before the age or 16 years, or day of marriage, that then the survivor should have her sister’s part thereof to her and her assigns forever. Averment, that Sarah, one of the legatees, departed this life under the age of 1G years, arid unmarried, whereby the said third part of die whole of the personal estate of John Coslin, so bequeathed to the said ■ Sarah, became due and payable to the said Ann, and the other third part of the said remaining part of John Costin'$ personal estate became due and payable to the said Ann by the will of the said Coslin; which said Ann intermarried with M- Tilden, at whose, and the said Anne's instance,, this suit was brought. That there remained in the hands of Clayland the sum of £217 1 7, clear personal estate, which was of the said Coslin after the payment of his debts,, and satisfying Elizabeth Coslin her third part of the whole estate bequeathed to her by her husband, which said sum became due and payable to the said Ann in manner aforesaid, by the wilt of the said John Coslin, and by the death-of ber sister Sarah, &c. Rejoinder to the first replication» that Elizubeth Coslin, the executrix of John Coslinr who took upon herself the burthen of executing the same, was by the will- of John Coslin constituted guardian to the said Sarah and Ann, and accepted of the trust and guardianship; and that she did, as guardian of the said Sarah and Ann, receive, and as executrix of John Coslin did pay and satisfy, to herseif as guardian of the said Sar'ah and Ann, the said sum of £217 1 7. Rejoinder to the Second replication, that there did not remain in the hands of Clayland, of the clear estate of Coslin unadministered fay Elizabeth Coslin after all payments, &c. the sum of JÜ9Á7 l 7 due to the said M. Tilden, and Ann his wife; nor did there remain in the hands of Clayland, due to M. Tilden and Ann his wife, any sum of money whatever. Upon this rejoinder issue was joined. To the rejoinder to the first replication there was a demurrer, which the county court ruled good.
    
      in an action oía an adniimstraiibit bond given by $ G, as administra» tor D B N of J C* of the goods unadministered by K C, the former executrix, to the plaintiff’s repH" cation that there remained in fhe handá of J O /217 1 7, clear personal estate, after pay* merit of debts, due and payable to A* the daughter of J C, the defendant rejoined, that JO C did, as the cruardian of A, receive, and as executrix of ,T C did nay and satisfy to herself, as guardian of A, the said sum of 1217 Z 7s Bern it iTer thereto ruled good; hut or* appeal reversed,
    Wheie the balance due on an aeemmt passed by E C. as executrix oí J C, was Z277 34 i, nml th« amount of the inventory returned by J (¿as administrator D. ii. 2?. was/21.4 2 6, the county eourt irfu>ed to direct the jury that the sum of/S3 11 7, the dilfetem-o between thos'* two sums is to Ins take* ui pau payment la R C ai‘ Iter a;ie third sinne oí tiiii personal estate bequeathed to her by J. Cm
    
      At the trial of the issue in fact, the plaintiff produced an account passed by Elizabeth Coslin, as executrix on John 
      
      Costings estate, leaving a balance due tú the estate on the i 3th of June 1789, of £277 14 1, and proved by the register of wills that no other account was passed by her. The plaintiff also offered in evidence the will of John Cos-tin, dated the 26th of March 1784, in wjiich, among Uthef devises and bequests, is the following: ‘•'’Item. Í give and devise my whole personal estate, of what nature soever, after my just debts are discharged in manner aforesaid, to be equally divided between my aforesaid wife, and two daughters Sarah and Ann, and their assigns, for ever, hut if either of my daughters shall die before the age of sixteen years, or day of marriage, then the survivor shall have her sister’s part thereof to her and her assigns for ever.” “I do hereby constitute and appoint my said wife, guardian of my said daughters, and every of them, and to have the care of their respective estates until they respectively arrive at the age of sixteen or day of marriage; and lastly, I do constitute and appoint my said wife executrix of this my last will and testament.” The plaintiff also produced the inventory returned on the 3d of November 1799, by Jacob Ciayland on the estate of John Costin, amounting to £214 2 6. And prayed the court to give the following in - struction to the jury. If the jury shall believe that Elizabeth Costin received from the estate of John Costin a sum of money beyond what was paid away in the course of her administration, and that she held in her hands, unapplied to John Costin'sc state, to the amount of £277 14 1 unaccounted for at her death, and that the amount of the property which came to the hands of Jacob Ciayland, administrator de bonis non of John Costin, amounts to £214 2 6, that the sum of £63 11 7, the difference between the balance of her last account, and the inventory of the administrator dc bonis non, is to be taken as part payment, of her share of the residuum, of John Costin's personal estate bequeathed to her under Lis will. Rut the Court, [ Worrell, A. J.] refused to give such instruction, being of opinion that Elizabeth Costin, under her bond, was liable for that sum. Verdict for the plaintiff, and damages assessed to £290 13 8. Judgment was rendered upon the verdict for the plaintiff; and the defendant appealed to this court.
    The cause was argued before Polk, Nicholson, and Johnson, J.
    
      
      Bullitt', for the Appellant.
    - By the bond given by Cltnj. latid, his sureties could only be liable for what came to his hands of the estate of John Costin, uhadministered by Elizabeth Costin. Clayland, himself, if he received the property, was liable, but not as administrator de bonis non, on under the bond. The general demurrer to the rejoinder, that Elizabeth Costin was the guardian of M?m,- accepted the trust, and paid over the money she' received as executrix, to herself as guardian, admits the facts; therefore she did pay over the money; and no presumption is necessary of the payment over, as the demurrer admits it. After the lapse of a year the legacy vested, or must be presumed to have been paid over to the guardian. He cited 2 Harr. Ent. 228, 329. Harris vs. Wright, (decided in the late general court.) 2 Bac. Ab. 386; and Quynn vs. The State, use Pue, et al. 1 Harr. & Johns. 36.
    
    Carmichael, for the Appellee.
   JUDGMENT HEVERijED.4  