Volume 33 — Maryland Reports

This was a suit instituted on the 3d of December, 1859, by the appellant, upon the bond of William Logan, who was sheriff of Washington county from December, 1853, to December, 1855, to recover from the appellees the amount of fees claimed to be due to Isaac Nesbitt, as clerk of the Circuit Court for Washington county, and for which fee bills were alleged to have been placed in the hands of said sheriff for collection; who did not collect, account for and pay over the same…

This was an action of ejectment brought by the appellant to recover possession of certain property, alleged to be leasehold, in the city of Baltimore. Both parties claimed under the will of one William Price, which was admitted to probate in October, 1831, and their respective titles depended on the construction of a clause in the will, which is set out fully in the opinion of this Court.

The bill of complaint in this case filed on the 30th of March, 1867, by the appellee, sought to obtain a decree for the sale of certain lands for the payment of the purchase money due thereon by the appellant. On the 25th of October following, a decree was passed for the sale of the land. A sale was made to the appellee and reported by the trustee.

The bill of complaint in this case set forth that a certain Rachel Colvin being seized of a large real and personal estate, was for a long time prior to August, 1850, of an unsound mind, and continued so until she died; that on the representations of Elisha Warford, that it was necessary to take certain steps to establish the lunacy of the said Rachel, and to have a committee or trustee appointed to take charge of her person and manage her estate, and upon his offer that,…

The bill of complaint in this case was filed by the appellees on the 12th of June, 1863, against the appellants. It stated that on or about the 29th of August, 1850, at the urgent request of George Kidd and his wife Maria II.

<p>Criminal Law — Nolle Prosequi.</p> <p>Pending a motion to quash an indictment for a felony, there was received and filed in the ease a nolle prosequi, granted hy the Governor, ordering “that all further proceedings against the accused on the indictment, , should cease and determine upon payment of the costs accrued upon said indictment, and that no further prosecution be, had or carried on against him for or on account of the said offence.” On motion of the counsel for the traverser, the Circuit Court ordered a “stet” to he entered in the prosecution, and further proceedings therein to be stayed. On a writ of error from the judgment of the Circuit Court, it was Held :</p> <p>1st. That the discharge of the accused was an end and determination of the suit, and such a final judgment as might ho reviewed on writ of error.</p> <p>2d. That the traverser was not entitled to claim the benefit of the nolle prosequi, until he had paid the costs of the prosecution ; — until that condition was performed the writ was inoperative.</p> <p>3d. That as the record did not show affirmatively that the costs had not been paid, and in the absence of any objection to the discharge of the accused on that account having been made in the Circuit Court, it will be presumed by the appellate Court that the condition precedent upon which the nolle prosequi was made to depend, was performed by the • accused.</p>

<p>Appeal from the Circuit Court for Baltimore County, in Equity.</p> <p>The facts will be found in the opinion of the Court.</p>

This was a proceeding by attachment on warrant, instituted on the 14th of January, 1868, by the appellee against the appellant, a non-resident.

On the 18th of February, 1869, Charles H. Wood executed to the appellant a mortgage of certain property on Pratt street, to secure the payment of $1,433.96 and interest. On the 30th of November, 1869, on the petition of the appellaftt, the Circuit Court passed a decree for the sale of' the property. On the 24th of December, 1869, the trustee, after having given the usual notice by advertisement, sold the property to the appellee for $800.

The defendant’s third plea alleged that the plaintiff had not paid the note given in pursuance of the contract, at maturity, and still refused to pay it, and by so doing had refused to perform the stipulations by him to be performed. To this plea the plaintiff demurred and the Court sustained the demurrer.

This suit was instituted by the appellant in accordance with the requirements of Resolution No. 4, of the General Assembly of Maryland of 1868, to recover certain sums of money claimed to be due and payable by the appellee, under the Acts of Assembly of 1853, ch. 441, and 1865, ch. 144, for the, augmentation of the Free School Fund of the State.

<p>Merger — Construction of a Will.</p> <p>T intermarried with H. Al the time of the marriage, the wife was possessed, of a term of years renewable forever, in a city lot. After the marriage, the husband purchased the reversion to the same lot. In the deed conveying tb,e reversion there was no expression of a purpose to extinguish the term. T afterwards died, his wife surviving him. Held :</p> <p>1st. That the interest of the wife in the property was not extinguished by merger, but survived to her on the death of the husband.</p> <p>2d. That such merger would be against the spirit and intention of the Act of 1853, ch. 245.</p> <p>The will of a husband after devising’to his wife absolutely all of his slaves, proceeded as follows: “Item. I likewise give and devise to my said wife all the rest of my estate so long as she remains my widow; at her death to be equally divided with my children, and to them and their heirs’ forever.” The widow afterwards married. Held :</p> <p>1st. That the limitation of the property to the widow during widowhood, was valid and effective.</p> <p>2d. That at the marriage of the widow the estate devolved on the children, it being the intention of the testator that the widow should have the property only during her widowhood.</p> <p>3d. That the intention of the testator being manifest, there is no intestacy, because the will did not expressly provide what was to become of the property during the intermediate time between the marriage and death of the widow.</p>

This was an ejectment by the appellee against the appellants, for a tract of land called “ The Trap,” which was patented to Nathaniel Beall Magruder, on the 27th of May, 1803. It was surveyed under a common warrant, dated the 4th day of February, 1789. The patentee on the 13th of August, 1803, conveyed “The Trap” to Adam Sigler and James Morrison.

Tins was an action of assumpsit instituted by the appellee to recover the balance of a loan made to the appellant. The pleas were never indebted, never promised, and set-off1 — the character of the last plea will be found sufficiently disclosed in the second prayer of the appellant. Pxeeption.

This action was instituted to recover the value of certain bacon, shipped on board the Steamer Kingfisher, and totally lost on a voyage from Baltimore to Charleston, and which the appellant claimed was covered by a policy of insurance issued by the appellee.

On the 8th day of August, 1865, George W. Peter and wife, soid and conveyed to John E. Reeside, certain lands in Montgomery county, for $20,000. The vendee paid $6,666.66 in cash, and for the balance gave his three promissory notes for $4,444.44 each, payable respectively at one, two and three years from date, secured by a mortgage or deed of trust, dated the 9th of August, 1865, containing a power of sale to George Peter, the trustee.

In June and October, 1868, John, Elizabeth, Peter, and Magdalena Herman, brothers and sisters, executed two mortgages to the appellant. On the 16th of February, 1869, a petition was filed by the appellant, under the provisions of Article 4, section 782, &c., of the Code of Public Local Laws, for the sale of the mortgaged premises, and on the following day a decree was obtained. The property was sold and reported by the trustee, and the usual order of ratification nisi passed.

This action was brought by the appellee against the appellants and one John Fletcher, as Judges of Election, at the November Election, 1866, in Election District No. 9, of Allegany County, to recover damages for refusing his vote, he being a registered voter under the Act of 1865, eh. 174. Fletcher' died before the trial.

This was an action instituted by the appellants, in January, 1858, against the appellee to recover the amount of five promissory notes, of which George W. Harrison was the drawer, and the appellee, together with James M. Benton and Elizabeth Harrison, were endorsers. The appellee pleaded that he did not promise as alleged, and issue was joined thereon. The case was tried once before and will be found reported in 17 Md., 159.

This was an action on an injunction bond, brought by the appellant against the appellees.

, This was añ action of assumpsit brought by the appellee against the appellant, on a promissory note for $125, dated the 8th of December, 1865, and payable six months after date, with interest. The facts of the case are sufficiently stated in the opinion of the Court.

First Fxcejrtion: The plaintiffs prayed the Court to instruct the jury that the record of proceedings in the judgment, in favor of Hanson Clarke against Robert F. Chew, and the schedule, return and advertisement of the.sheriff, and the deed, as offered in evidence by the defendant, are not sufficient in law to establish an outstanding title as against the plaintiffs as to the two tracts of land or parts of tracts called Gileard and Gidor, named in the proceedings and claimed…

This was an action of replevin, instituted by the appellant against the appellees, to recover possession of certain personal property which had been mortgaged by the latter to the former. The facts of the case are sufficiently stated in the opinion of the Court.

The bill of complaint in this case was filed on the 6th of August, 1867, by the appellees for the purpose of vacating and annulling certain transfers and gifts of private securities, and United States seven-thirty and five-twenty bonds to the amount of nearly $50,000, made in December, 1866, bv Benjamin Todd, the deceased husband of the appellee, Ruth, to his brother, the appellant.

Appeals from the Circuit Court for Prince George’s County, in Equity. The bill of complaint in this case was filed on the 7th of November, 1865, by some of the judgment creditors of Thomas F. Bowie, against him and his other judgment creditors, for the sale of his real and personal estate for the payment of debts.

For the facts relating to this appeal, reference may be had to the preceding case {ante 209) which was argued at the same time.

Appeals from the Circuit Court for Charles County. These appeals were taken from the order of the Circuit Court, dated the 2d of November, 1869, ratifying account B, and rejecting accounts A, C and D, filed in the .matter of the insolvent estate of George H. Waters. The facts of the case are very fully and clearly stated in the opinion of the Court.

This was an appeal from the judgment of the Court below, rendered on an appeal from a justice of the peace, in a proceeding by a landlord against his tenant, for wrongfully holding over after the expiration of his term.

Appeals from the Circuit Court of Baltimore City. The bill of complaint in this case was filed on the 9th of July, 186.7, by the appellee, against the appellants and Leonard Passano; it alleged, that prior to the years 1858 and 1859, the complainant, then residing at Funkstown; Maryland, directed his attention to the compounding of certain medicines and preparations; that by diligent and laborious study, and careful and oft-repeated experiments, he succeeded in producing the…

Appjbals from the Baltimore City Court. On the 14th day of May, 1867, an ordinance was passed by the Mayor and City Council of Baltimore, to condemn and open Mosher street, from Druid Hill avenue to Madison avenue.

This was an appeal from a decree of tlio Circuit Court, dated the 26th of May, 1870, directing a sale of the City Hotel buildings and grounds in .the city of Baltimore, passed in conformity with the decree of the Court of Appeals, dated the 8th of December, 1869, and the opinion accompanying the same, (see 31 Md., 425.) By the decree of the Circuit Court it was declared that all questions in relation to the claim of John R. Barnum, (whose representatives, since his death,…

This was an action for the breach of a promise of marriage, brought by the appellee against the appellant. Exception: At the instance of the plaintiff the Court instructed the jury that the damages to be given in this action rests in their .sound discretion under all the circumstances of the case.

This was an action brought by the appellant to recover from the appellees on a contract for the sale of a thousand bags of Quercitron bark. The narr. contained the usual money counts.

This is an appeal from an order passed by the Court below, granting an injunction as prayed in the bill of the appellee.

<p>Creditors' Bill — Plea of the Statute of Limitations.</p> <p>On a creditors’ bill filed to vacate certain deeds executed by the debtor in fraud of existing creditors a decree was passed on the 22d of June, 1867, vacating the deeds as against the complainants and all other creditors of the debtor who were such on or prior to the 2d of May, 1861, and directing the property, or so much thereof as might be necessary to pay their claims, to he sold for that purpose. . The trustee was directed to give the usual notice to such creditors. In consideration of the withdrawal of an appeal which had been taken by the debtor and others from this decree, certain judgment creditors, parties to the suit, agreed to accept the amount of their respective judgments without interest, to be paid out of the proceeds of a designated portion of the debtor’s property; and on payment thereof the decree was to be entered satisfied. The specified portion of the property was sold by the trustee, and an account stated distributing the entire proceeds, together with other money which had been received by the trustee, to the discharge of the claims of these creditors. On the 18th of April, 1868, the account was finally ratified; On the 9th of March, 1868, certain creditors who were not named as complainants in the bill, filed their claims which existed prior to the 2d of May, 1861, and which were barred by limitations long before they were filed. On the 1st of May, 1869, the debtor and others filed their petition, pleading the Statute of Limitations as a bar to each of these claims. The claimants objected to the plea, that it was taken too late. Held :</p> <p>That the Statute was pleaded in due time and at the proper stage of the cause.</p>

Cross Appeals from the Superior Court of Baltimore City. This was an action on the case brought by The Baltimore and Susquehanna Steam Company, the landlord of a lot of ground and wharf in the city of Baltimore, against William Thomson, sheriff of said city, for seizing and removing under an attachment on warrant against The Commercial Steamboat Company, certain goods and chattels of said company, being on the premises of which it was the tenant, without paying a month’s…

This appeal was taken from the decree of the Circuit Court dismissing the bill of the complainant. The facts of the case are sufficiently stated in the opinion of this Court.

The bill in this case was filed by the apppellant to procure a divorce a vinculo matrimonii from the appello.0, upon the ground of abandonment, under Article 16, section 25, of the Code of Public General Laws. The character of the evidence is sufficiently disclosed in the opinion of this Court.

The facts are given in the opinion of the Court. Exception: The defendant offered the following prayers: 1st. That the plaintiffs cannot recover in this case, if the jury shall find from the evidence in the cause, that there was want of ordinary care on the part of the plaintiffs, which contributed to the collision, even if the jury shall find from the evidence that there was fault also on the part of the defendant. 2d. That even if the jury shall find from the evidence,…

The facts of the case are sufficiently set out in the Court’s opinion. The several exhibits referred to in the prayer, incorporated in the opinion, are the letters, bill of lading and invoice, referred to in the earlier part of the opinion. The plaintiff’s fifth prayer, mentioned in the dissenting opinion, is the one set out by the Court.

The bill of complaint in this case, filed on the 24th of September, 1866, by the appellee against the appellants, and Jas. Held: and never failed in designating the proper time to apply for them.

This was an action of assumpsit brought by the appellees to recover from the appellant a balance of $633.30, alleged to be due them for the livery of certain horses and for the value of a horse, the property of the plaintiffs, sold by the defendant. Plea — the general issue. The suit was originally brought in the Court of Common Pleas, but was removed by the appellees, on affidavit, to the Baltimore City Court, where a judgment was rendered in their favor for $726.37.

The case is fully stated in the opinion of the Court. Exception: The plaintiff offered the following prayer, which was rejected: That by the true construction of the two papers offered in evidence by the plaintiff, dated 30th of October, 1857, and 29th of March, 1862, the defendant Maekall became a partner in the firm of J. W. & E. Reynolds & Co., mentioned in said papers, it being admitted that said papers were signed by Maekall and the other parties therein.

This is an appeal from a decree of the Court below dismissing the bill of the appellant, which prayed a divorce a vinculo matrimonii, from his wife, the appellee, on the ground of her impotence, which existed at the time of their marriage. The facts of the case are sufficiently stated in the opinion of the Court.

This suit was instituted by tbe appellants against the appellee; the declaration contained the common counts — a count for $2,283.30 in gold coin, received by the defendant for the use of the plaintiffs, and a count upon a gold check for said sum. Evidence was offered to support the hypothesis of the prayers.

<p>Responsibility of the Master of a Vessel for necessary Supplies — Interest of the Oioners of a Vessel in the Freight.</p> <p>Supplies were furnished for a schooner which was hired under a contract with the owners, known as a “lay,” the terms of which were that the master should victual and man the vessel, and after all port charges were deducted, he should receiye one-half of the freights. The existence of the contract was known to the parties who furnished the supplies for the vessel. The account for the supplies was kept against the schooner and owners. An attachment was issued hy the parties who furnished the supplies, against the master of the vessel, a non-resident, and laid in the hands of persons who had chartered the vessel from the master in his own’name. At the time of laying the attachment there was a net balance in the hands of the garnishees for freight due on the charter-party, more than the claim for supplies; and at the same date the master was indebted, to the owners of the vessel on account of freights earned under the contract with them, to an amount greater than that due by the garnishees on the charter-party. Before the laying of the attachment, the owners of the vessel notified the garnishees not to pay the master any more of the freight then due. Heed :</p> <p>1st. That the master, and not the owners, was responsible for the supplies furnished to the vessel, notwithstanding the bill for them was made out against the vessel-and her owners.</p> <p>2d. That the balance of the freight in the hands of the garnishees, due on the charter-party, was not the rightful property of the master, and therefore not subject to the attachment.</p>

<p>Void beguést — Incomplete administration — Plea of Limitations in an Action of Ejectment.</p> <p>H. Conner bequeathed certain leasehold property to his wife for life, and after her death, to her son for his life, and after his death to an illegitimate son of the testator absolutely. The legatee in remainder was a slave for life, and not the property of the testator. The wife of the testator was appointed the sole executrix, and as such, obtained letters testamentary upon her husband’s estate and returned an inventory thereof, hut never settled an account in the Orphans’ Court. She paid all the debts of the estate, however, and took possession of the property as legatee under the will, and continued such possession until her death, “ without having made any other transfer, conveyance, sale or distribution of the same, or having obtained any order of the Court therefor, either as executrix or otherwise.” Upon her death, her son took possession of the leasehold premises, and continued in possession until August, 1822, when he sold all his right therein to S, who took possession, and in December following, conveyed his interest therein to C, who took possession and retained it until his death. Upon his death, his executor took possession of the premises as part of the estate of his testator, and held the same until they were assigned to the defendant as a distributive portion of said estate. II. Conner left next of kin. The second tenant for life died more than twenty years previous to J uno, 1869, when letters of administration d. b. n. c. t. a. on the estate of H. Conner were granted to the plaintiff’s lessor, who, after obtaining such letters, made demand for the promises, and was refused. In an action of ejectment by him to recover the premises, it was Held :</p> <p>1st. That the bequest of the residuary interest in the premises failed, the legatee being a slave, and not belonging to the testator, and such interest, after the expiration of the estates of the two life-tenants, remained undisposed of, and formed part of the testator’s estate for distribution to his next of kin.</p> <p>2d. That such residuum was a proper subject for an administration de bonis non, and vested in the administrator upon the grant of such letters.</p> <p>8d. And as there was no person in being capable of suing after the termination of the last life estate, until the grant of letters to the lessor of the plaintiff, the Statute of Limitations did not bar.</p>

The bill of complaint in this case was filed by the appellants. The appellees demurred and answered. By agreement of counsel, a judgment sustaining the demurrer was entered, pro forma.

<p>From what an Appeal will not lie — If on-residence as a Defence to an Action — Practice.</p> <p>An appeal will not lie from an order directing issues to bo framed, for determination by a jury, upon the question of the non-residenco of a defendant, raised by a motion for a judgment of non pros., upon the ground that he was not a resident of the city of Baltimore, where he was sued.</p> <p>A person sued out of the county in which he resides, may present the question of his noil-residence by a motion for a non pros., supported by affidavit; and when the question is so presented, it is the duty of the Court to hear and determine it, without the intervention of a jury, on affidavits, or such proof as the Court may order to he taken, in accordance with the rules of practice in summary proceedings of like character.</p> <p>And such proceeding hy the Court is no violation of the constitutional provision securing “the right of trial hy jury of all issues of fact in civil proceedings in Courts of Law, where the amount in controversy exceeds the sum of five dollars,”</p>

Exception: The plaintiff asked the following instruction: If the jury shall find from the evidence, that the plaintiff’s bill was for necessaries furnished to the wife of the defendant before his marriage, and during a period after the death of her father, when she was entitled to property in her own right, of a much larger value than the amount of said bill, and that she owned said property at the time of her marriage and that the same is now still owned by her and her…

The appellee was indicted for bastardy; he pleaded— 1st. Not guilty. 2d. That the mother of the said pretended illegitimate child, in the year 1866, appeared before George Moore, one of the justices of the peace of the State of Maryland, for Cecil county,, and being by him required to disclose'the name of the father of said child, refused so to do, and in accordance with law, being required by said justice to give security to indemnify said county from any charge that might…

This was an appeal from an order passed on the 6th of August, 1869, striking out the appellant’s appeal from a decree passed on the 19th of August, 1868, rejecting her claims of over $25,000; and also from an order passed on the 28th of December, 1869, refusing to restore said appeal.

This was an action of ejectment instituted by the appellant, to recover from the appellee, tenant in possession, certain premises, situate on Exeter street, in the city of Baltimore.

This suit was commenced by the appellant on the 11th of September, 1868, by the filing of a narr. containing two counts, one for work and labor done, and the other for services rendered by the plaintiff's testator, in his lifetime, as agent and attorney, in obtaining from the Legislature an Act (1835, eh. 395) authorizing a subscription by the State of three millions of dollars to the capital stock of the appellee, which subscription was made by the State pursuant to the…

<p> A Penalty can only he enforced within the State, where the Law which imposes it, is enacted. </p> <p>Under a statute of Pennsylvania, it was provided that the total amount of the debts and liabilities (other than the capital stock) of certain companies, should never exceed the amount of their capital actually paid in ; and if any debts or liabilities should be eontraetod exceeding the said amount, the directors and officers contracting the same, or assenting thereto, should be jointly and severally liable, in their individual capacities for the whole amount of such excess, and the same might be recovered by action of debt as in other cases. Held :</p> <p>That the liability imposed upon the directors and officers of such corporations, is in the nature of a penalty, and can only be enforced within the limits of Pennsylvatia.</p>

This was an action brought by the appellee against the appellant, upon a promissory note executed in Carter county, Tennessee, during the ascendancy of the Confederate Government; the consideration was a loan of Confederate money. The case was tried before the Court by consent, and judgment was rendered for the plaintiff for the full amount of the face of the note, with interest.

<p>Appeal from the Baltimore City Court.</p>

This was an action of ejectment brought by the appellee against the appellant, to recover one undivided third part of a lot of ground in Saint Paul street, in the city of Baltimore. Both parties claimed under Rich’d Johns, who died in June, 1869, seized in fee of the land in question, which he acquired by purchase, and which was conveyed to him by deed of the 11th of June, 1867.

<p>Unauthorized correction of a Mistake hy a Clerk— From what an Appeal will not lie.</p> <p>A judgment having been confessed on the 7th of January, 1809, in the Superior Court of Baltimore City, on the 15th of the same month certain persons appeared before the clerk of the Court, at his office in the Court-house, and as sureties confessed judgment in the usual way, to he levied of their goods, chattels, lands or tenements, in case the defendant did not pay the said original judgment on the 7th day of Juno next. The blank form of supersedeas was signed by the sureties, and attested by the clerk. The clerk in filling up the blank which was thus signed hy the sureties, inadvertently wrote “Juno,” instead of “ July; ” subsequently on discovering bis mistake, be changed the last two letters “ ne ” to “ ly,” so as to make it read “ .July,” On motion by one of the sureties to strike out the supersedeas judgment, it was Held :</p> <p>That the correction made by the clerk was not warranted by law, and the judgment should be stricken out.</p> <p>A motion by a superseder to strike out the judgment of supersedeas having been overruled, an appeal was taken by him from the order of the Court refusing to strike out. Subsequently the appellant filed a petition asking the Judge to certify to the Court of Appeals, as part of the record in the appeal he had taken, an affidavit of his counsel made some time after the motion to strike out had been decided, and also one of its rules. The Court refused the petition. Erom this action of the Court no appeal will lie</p>

This was an action against the appellant, brought in the name of the State for the use of the widow and children of John Trainor, deceased, to recover damages for his death. The deceased was employed as a spiker, by the appellant.

Appeals from the Circuit Court of Baltimore City. The facts of the case sufficiently appear in the opinion of the Court. The appeal was taken from an order of the Circuit Court overruling exceptions to the auditor’s account, and ratifying the same.

On the 2d day of July, 1864, the Orphans’ Court of Baltimore City passed an order admitting to probate what was alleged to be the nuncupative will of James O’Neill, deceased, under which Mary Smith, the wife of the appellee, claimed as sole legatee. The will consisted of three affidavits made before the Register of Wills, on the 25th of June, 1864, by John Kelly, Robert Kelly and Anna Reiley — John and Robert being the sons, and Anna the sister, of the legatee under the will.

This was an appeal from an order of the Circuit Court ratifying the auditor’s account which rejected the claim of the United States.

The bill of complaint in this case was a creditors’ bill filed by the appellants against the appellees; its object was to annul and vacate three deeds which conveyed certain real estate to the appellee, Ann, and to subject the same to the payment of their claims. The Circuit Court passed a decree dismissing the bill.

<p>AppeaXj from the Circuit Court for Washington County, in Equity.</p>

The appellees having obtained judgment in the Superior Court of Baltimore city against William Robinson, issued an attachment thereon to the Sheriff of Baltimore county, who on the 15th of March, 1860, levied upon a farm in said county, and upon certain personal chattels. On the same day lie laid the' attachment in the hands of Hugh Horner, residing on the farm and who had been employed, by Robinson as his manager.

<p>Instructions accompanying a Will, part of the Will— Trust void for Uncertainty and as a Perpetuity— Limitations —Laches —Interest.</p> <p>A testator by his will, executed on the 5th of Eebruary, 1843, bequeathed certain leasehold property and a small ground rent to his wife during her life, and after her death to certain named persons, or to the survivors of them at the time of her death, and to their heirs and assigns. He also bequeathed to them certain stock of the city of Baltimore, together with all the rest and residue of his property. Simultaneously with the execution of his will, the testator executed another paper in the form of a letter of instructions to the same persons, in which he declared his intentions in respect of the property bequeathed to them in his will — that it should be held in special trust, and the net revenue and proceeds thereof, as fast as the same might accrue, be applied “ to the education of free colored persons in the city of Baltimore.” The paper also provided for filling any vacancy which might occur by the death, disqualification or resignation of any of the trustees, in order to carry into effect and perpetuate the intentions of the testator in relation to the education of free colored persons. Both papers were deposited with the Register of Wills for safe-keeping. On the day following the execution of his will the testator died; the will was admitted to probate, and the other paper with the testimony taken in relation to it, were ordered to be recorded. The widow died in January, 1850, when the trustees took possession of that part of the property in which she had had a life estate. In 1807, the leasehold property was sold by the trustees and the proceeds invested in Baltimore City Stock. On a bill filed in September, 1869, by a nephew and next of kin of the testator to have the trust thus created declared void, it was Held :</p> <p>1st. That the will and the letter of instructions executed at the same time, were intended by the testator to bo taken and to operate as one complete and entire disposition of his property, and they together constituted 1ns will.</p> <p>2d. That the trust declared by the testator for 11 the education of free colored persons in the city of Baltimore ” was void for uncertainty and as creating a perpetuity.</p> <p>3d. That the claim of the complainant as next of kin, to the stock of the city of Baltimore taken into possession by the trustees, was barred by limitations.</p> <p>4th. That as to the leasehold property in which the widow had a life estate, the claim of the complainant was not barred by limitations, he having filed his bill within twenty years after her death.</p> <p>5th. That the complainant had not lost his right to the aid of a Court of Equity by his laches.</p> <p>6th. That the complainant was entitled to interest only from the date of the filing of his bill, which gave notice to the trustees of his claim.</p>