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Reports of Cases in the High Court of Chancery of Maryland 1846-1854
Volume 200, Volume 4, Page 125   View pdf image (33K)
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TOLSON VS. TOLSON. 125
the year 1845, or any other period, it was for them to show it
by proof, and in the absence of proof it is not to be presumed.
The defendant's fourth exception must also fall, because it
objects to the average made by the Auditor of the proof of the
witnesses in regard to the credits. In his average he has in-
cluded the testimony of Mary Ann McPherson, and has given
the proper weight to it.
My opinion, then, is, that the account D., accompanying the
report of the Auditor of the 9th of July last, is staled upon
proper principles, and it will be confirmed, and the only other
question has respect to the form of the decree. That is,
whether the sum which shall be decreed to be paid by the de-
fendants, shall be charged against them in solido or distribu-
tively. It may be that under the last opinion of the Court of
Appeals this court is not prohibited from adopting the former
mode of securing to the complainant the benefit of the lien
given him by the devise in his father's will, but it is most cer-
tain the appellate court express a decided preference for the
latter form of relief, and it will therefore be adopted, so far as
the arrears are concerned. To prevent injustice, however, the
decree will declare the whole sum in arrear a charge on the entire
real estate, such being the express judgment of the Court of
Appeals.
The decree, then, will provide that each defendant shall pay
the complainant, or bring into this court to be paid him the
sum stated in the memorandum appended to the said account,
D., with interest on the proper proportion thereof. That in
default of payment by any one of them, his share of the estate
charged with the lien shall be sold, and the proceeds brought
into court for disposition, and that in the event of the inability
of any one of the defendants to pay his proportion, the com-
plainant shall be at liberty to apply to the court for such order
or decree against the others, as may be necessary.
And the decree will also provide for the payment by the
defendants to the complainant of an annuity of one hundred
and ninety dollars during his life, in semi-annual payments,
commencing from the 1st of July, 1853, and for his costs to be

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Reports of Cases in the High Court of Chancery of Maryland 1846-1854
Volume 200, Volume 4, Page 125   View pdf image (33K)
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