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Reports of Cases in the High Court of Chancery of Maryland 1846-1854
Volume 200, Volume 2, Page 99   View pdf image (33K)
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WILLIAMSON VS. MORTON. 99
to portions of the evidence, on both sides, exceptions have
been filed.
On the part of Mrs. Williamson, and the parties entitled
upon the determination of her life estate, it is objected, that
Miller and Mayhew are precluded from offering any evidence
to show that the assignment to them, of the 1st of February,
1849, was executed by Charles A. Williamson, to convey or
assign, or did convey or assign, any interest of said William-
son, in his own right, as purchaser or owner of the mortgage
mentioned in the assignment, or any interest therein, other than
that which he' held as executor and devisee of Mrs. Jones, his
testatrix; and they except to the admissibility and competency
of any and all evidence on the part of Miller and Mayhew,
tending to show that they dealt with said Williamson, in the
matter of the said assignment, in any other capacity than that
of executor and devisee.
If this exception is well taken, it seems to me it must be
conclusive of the controversy between these parties; because
it is too obvious for dispute, that Miller and Mayhew, by taking
an assignment of this mortgage, to secure the payment of the
notes of Williamson, Sutton and Company, were participating in
and aiding the executor in diverting the assets of the estate from
their proper destination; that is, in committing a breach of
trust or devastavit.
Regarding Mr. Williamson simply as the executor and de-
visee, and supposing Miller and Mayhew to be clothed only
with the rights which, in those capacities, he could confer upon
them, it is most manifest, they were, by this transaction, aiding
him in a gross misapplication of the assets, contrary to his duty
as executor, and as is well settled by. the authorities, which are
collected in 1 Roper on Legacies, 303; an assignment to them,
under such circumstances, gives them no title. In a court of
law, the rule is supposed to be less strict, for there, in order to
defeat the title of the alienee of the executor, it appears to be
necessary to show actual collusion between the executor and
the purchaser. There must be contrivance between the execu-
tor and his own creditor, to enable the former to commit a de-

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Reports of Cases in the High Court of Chancery of Maryland 1846-1854
Volume 200, Volume 2, Page 99   View pdf image (33K)
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