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1825, stated a balance due from them to the estate of $6,230.63; and the second account, dated and proved the 9th of August, 1825, stated a balance due from them of $4,145.19. The defendant * then read to the jury an additional account, passed by the said administrators, in the Orphans' Court, on the 17th of October, 1827, by which the balance against them was reduced to $1,401.13. And the plaintiffs then proved, that the negroes mentioned in the inventory, were employed, and worked by the administrators, from the death of the intestate, until 1824, and claimed the hire of the said negroes, to be charged against the administrators, at such price as the jury might think them worth, from the time they took them into possession as administrators as aforesaid, until they parted with them, in addition to the sums charged in their account, in the Orphans' Court, to which the defendant, by his counsel objected; but the Court allowed the said claim. The defendant excepted, and the verdict and judgment being against him, he prosecuted the present appeal.

The cause was argued before BUCHANAN, C. J., EARLE, MARTIN, and ARCHER, JJ.

Stonestreet, for the appellant. 1. The defendant was not chargeable with the hire of the negroes, contained in the inventory, under the plaintiff's replication. 1 Stark. Ev. 387. 2. The hire of the negroes in this case, is not assets,-the administration having commenced prior to the Act of 1818, ch. 217.

J. Johnson, for the appellee.

ARCHER, J. delivered the opinion of the Court. It was determined by this Court, in the case of Hall vs. Griffith, 2 H. & J. 485, that an administrator was bound to account in the Orphans' Court, for the hire and use of negroes; and his liability as administrator being thus ascertained, it follows, that he and his sureties are liable on his bond for a failure, in this respect, to discharge his duties. This decision does not declare, in express terms, the responsibility of the administrator, in this respect, to arise at any particular period, whether from the session, shall be assets belonging to the estate, and shall be accounted for by him.

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But the decree in the case above referred to, does not leave any room to doubt, but that before the law of 1818, ch. 217, the administrator was liable for the hire and use of negroes, previous to the time allowed him by law, to pass his final account; because the Court there adjudged, that he should account for the hire and use, without any limitation, or restriction, as to time. Had the law been other wise, the decree would have ascertained the period, when the administrator's liability commenced. The Act of 1798, having made. negroes assets, the hire, after the death of the owner, became assets also, for it was an incident, or profit springing out of that, which

was declared assets, and partook of its nature and character in the same manner, as would the interest arising after the death of the obligee, in a bond given to him, in his life-time. The administrator would be justly chargeable for the use of the negroes, if such charge were within the issue to be tried. But there is no issue joined, which brings this question before the jury. The sole question, to be tried under the pleadings, was, the verity of the plaintiff's replication, which alleged an inventory returned by the administrators de bonis non, and that after sundry disbursements made, there remained a balance of said inventory, in the hands of the administrators, to be distributed, and that the plaintiff, as one of the distributees, was entitled to one-fifth part thereof. The plaintiff, upon this state of the pleadings, could not insist on charging the defendants, for anything which was not contained in the inventory; because, nothing beyond that was claimed; and of course, the hire of the negroes, which had been accruing from the date of the inventory, could not become the subject of inquiry, and of charge in this suit. But it is supposed, that the Act of 1825, ch. 117, precludes an inquiry into the correctness of the prayer, upon the ground, that the attempted charge is not within the issue; that Act, shutting out an investigation into any point not presented to the Court below. But we 282 conceive, that the prayer necessarily raised this point in the Court below; for the plaintiffs claim, that the defendants should be charged for this use, in addition to the sums charged in their accounts in the Orphans' Court; or in other words, that they should be charged with this sum, over and above the amount of the inventory, as returned and charged in their accounts; which presented the question, not only, of the general liability of the administrators to such a charge, but their responsibility under the forms of pleading adopted. Judgment reversed, and procedendo awarded.

N. B. This case was decided in 1829, and accidentally omitted to be reported at that time.

SARAH DUVALL vs. THE FARMERS BANK OF MARYLAND.—June,

1832.

When the aid of a Court of equity is necessary, to enable the husband to obtain possession of the wife's personal property, he must do what is equitable, by making a suitable provision out of it, for her maintenance, and that of her children. (a)

The wife's equity exists, although there has been an assignment for a valuable consideration; and the assignee, standing in the place of the hus

(a) Cited in Wiles vs. Wiles, 3 Md. 8; Norris vs. Lantz, 18 Md. 270.

band, and seeking to withdraw the funds, will be compelled to make the provision. (b)

In England, this principle is founded upon the rule, that the husband. seeking the intervention of a Court of equity to gain possession of his wife's estate, must do equity.

It is immaterial, whether the wife asserts her claim to this equity, in opposition to the complainant in an original bill, or by petition, after an order of the Court distributing a fund in Court, which has not been paid over. In the latter case, it will be considered, as substantially an exception to the auditor's report, distributing the fund out of which she claims payment. Under the order nisi, usually passed upon petitions against funds in Court, the rights of all the parties interested, will be examined and determined. (c)

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* The character and extent of the provision for the wife, would seem in every case to be governed by its peculiar circumstances, and be regulated by the whole amount of the wife's fortune, and what the husband had previously received.

APPEAL from the Court of Chancery. A portion of the personal estate of a certain Benjamin Harwood, who died sometime in January, or February, 1826, being in the Court of Chancery for distribution; a petition was filed by the appellant on the 24th July, 1830, as one of the representatives of the said Benjamin, setting forth, that her husband, Lewis Duvall, who departed this life in November, 1829, in his life-time, executed certain assignments of her share of said personal estate, to one Jonathan Pinkney, cashier of The Farmers Bank of Maryland, without her knowledge or consent. That the petitioner had never known until this day, that said fund was in a course of distribution in this Court, or that any persons claiming to be the assignees of her share were receiving the same, under its sanction. That on the 22d July, 1830, a further dividend of said estate was made, and reported by the auditor, of which until this day she had no knowledge, and she prayed leave to except to the same, as well as to all preceding reports in the cause, in any way af fecting her rights, or share in said estate, and that the administrators of the said Benjamin Harwood, deceased, be directed not to pay over any part of said estate, to any assignee of the husband of this petitioner; and that the president, &c. of the said Farmers Bank, be directed to bring into Court, such dividends as they may have received on the said estate, and that the same, together with all future dividends, be paid to her. The petition further states, that the assignment in virtue of which the bank claims, and which bears date 10th July, 1827, was obtained from her husband when he was not of sane mind for the transaction of business; he having pre

(b) Cited in State vs. Reigart, 1 Gill, 27; McVey vs. Boggs, 3 Md. Ch. 95; Hall vs. Hall, 4 Md. Ch. 286; Norris vs. Lantz, 18 Md. 270; Oswald vs. Hoover, 43 Md. 368. See Rev. Code, Art. 51, sec. 20.

(c) Cited, as to proceeding by petition, in Brown vs. Thomas, 46 Md. 641.

*

viously been reduced to a state of mental imbecility, which incapacitated him for the management of his affairs, by a para284 lysis, which she believes was known, at the time to the bank. That prior to this assignment, to wit, in August, 1826, when her said husband had no right to transfer her interest in said estate at all, he had assigned the same to the said bank, and she alleges that the assignment of 10th July, 1827, was merely substituted for that of August, 1826, and so in truth, and in fact, the whole proceedings of the bank, were in fraud of this petitioner, for the purpose of obtaining further security for old debts, due at that time from her said husband. That no part of said estate, ever in fact came to his hands, but the whole transaction was a mere shifting of accounts upon the books of the bank; and that her entire distributive share, is still an equitable chose in action in this Court, which has survived to her. She therefore, charges said assignment to be void for want of consideration, and fraudulent, and void, as having been obtained from a man utterly non compos mentis for such a purpose. The petition then alleges, that if she be not entitled to the entire share of said estate, already distributed, and remaining to be distributed, that at all events, she is entitled as survivor, to the divideud declared on the 22d July, 1830, which she prays may be paid to her, instead of the aforesaid assignees, or that a suitable provision out of said share be made for her, and for such other relief as can be afforded her upon this petition.

Copies of the assignments referred to, marked exhibits A and B, were filed with the petition.

The first which bears date in August, 1826, recites, that the assignor (Lewis Duvall) is indebted to the Farmers Bank of Maryland, in the sum of ten thousand dollars, upon two promissory notes, dated on the 10th of March, 1824, "towards the payment of which, he assigned, transferred, and made over to Jonathan Pinkney, cashier of said bank, his, the assignor's wife's interest in the estate of the late Benjamin Harwood, (except her proportion of stock in the Bank of Columbia,) and he thereby directed the administrators * of 285 the said Benjamin Harwood, to pay the same to the said Pinkney, to be applied as aforesaid."

The second, dated July 10th, 1827, recites the indebtedness of the assignor, in the sum mentioned in the previous assignment, his further indebtedness in the sum of $7,857 upon a note, endorsed by a certain Richard Duvall, and Grafton B. Duvall, dated 9th May, 1827, at sixty days; upon another note, drawn and endorsed, as aforesaid, for $300, at ninety days from the 1st June, 1827. Upon a third, similarly drawn, and endorsed, at sixty days from 20th June, 1827, the sum of $750, and several large sums for interest and discounts. The assignment then proceeds: "Towards the payment of said claims as aforesaid, in the order hereinafter to be stated; I do hereby assign, transfer and make over, unto Jonathan Pinkney, and for the use of

the president, directors, and company of the Farmers Bank of Maryland, all my wife's interest in the personal estate of the late Benjamin Harwood, (except her proportion of the stock in the Bank of Columbia,) and I do hereby direct the administrators of the said Benjamin Harwood, to pay the dividends now due, and as they be come due, to which my wife is entitled as aforesaid, to the said Jonathan Pinkney, for the use aforesaid, and the money when received, to be applied in the first place to pay off the money which I now owe as aforesaid, or at any time when a dividend is received, may owe for discounts, or interest to said Farmers Bank; in the second place to discharge the note aforesaid, for $1,000; to pay the three notes as aforesaid, drawn by me, and endorsed by Richard and Grafton B. Duvall, and the residue to the discharge as far as it will go, of the note of $9,000, before mentioned."

The answer of the bank, admitted the petitioner to be one of the representatives of the deceased, Benjamin Harwood, and the death of her husband, Lewis Duvall, as stated by her. It was also admitted, that exhibits A and B, were true copies of the assignments executed by Lewis Duvall, in his life-time to the bank. The answer then stated, that notice of said assignments was given to 286 the administrators of Benjamin Harwood, who in compliance therewith paid the assignees $4,204.93 on the 28th July, 1827; the further sum of $697.33, on the 19th November, 1827; and the further sum of $1,038.65, on the 13th November, 1828. That the assignments were executed for a full and valuable consideration, and that the moneys received have been applied as directed by that of the 10th of July, 1827. That a considerable balance is yet due of the debts therein mentioned, which they believe the entire interest of the petitioner, in the deceased's estate will be inadequate to discharge.

They do not admit that the petitioner was ignorant of said assignments. They allege that the last of the 10th July, 1827, was executed at the request of Lewis Duvall, who was desirous after paying the one thousand dollar note, and certain interest and discounts, to provide for the two notes, endorsed by Richard and Grafton B. Duvall, and for that purpose, the bank agreeing thereto, the same was executed. The answer denies, that Duvall was incapable of managing his affairs when the assignments, or either of them was executed and it suggests, that as the last was executed for the indemnity of the endorsers, Richard and Grafton B. Duvall, they ought to be made parties. The answer further states, that after the execution of the aforesaid assignments, the administrators of Benjamin Harwood assumed to pay the bank, the amount of the interest of the petitioner, and that therefore, they are not compelled to resort to a Court of equity for the fund, which the defendant alleges, is a sufficient answer to the claim in right of survivorship, to receive the unpaid dividends; or for an equitable provision out of the same.