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Reports of Cases in the High Court of Chancery of Maryland 1846-1854
Volume 200, Volume 4, Page 279   View pdf image (33K)
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BENSON VS. WRIGHT AND MARFIELD. 279
THE CHANCELLOR :
My opinion is, that according to the legal construction of
the will of the testatrix, Hannah Benson, upon which the di-
rection of the court is asked in this case, the child or children
of Margaret Swornstedt and William Benson, born since the
death of the testatrix, are to be excluded from the benefit of the
bequest, but that all the children of these parties born prior to
that period are entitled to participate equally therein with
George Benson. That the children of the persons named,
born before the death of the testatrix, and George Benson,
take per capitaand equally.
That the after born children are to be excluded from the dis-
tribution, and that the children living at the death of the testa-
trix are entitled to the fund bequeathed, seems to be settled by
the cases referred to in 1 Roper on Legacies, 48, 49; and that
the legatees take per capita is shown by the principles laid
down in the same book. 126, 127,and Maddox vs. State, use
of Swann et al. 4 H. & J., 539.
In this case, however, infants are concerned, and as the state-
ments in the pleadings are not evidence against them, a final
order directing the distribution cannot be passed until the num-
ber, names and ages of the children of Margaret Swornstedt
and William Benson shall be shown by evidence, that the court
may sec which of thorn were born subsequently to the death of
the testatrix, and which prior thereto. The period of the death
of the testatrix must also be shown. The answer of an infant
by his guardian is not evidence again him, and I have, upon
several occasions, decided that the necessity of establishing the
case, as stated in the pleadings, by proof, is not obviated by
making the infant a plaintiff. Kent's adm'rs vs. Taneyhill et
al, 6 G. & J., 1.
WM. J. WARD, for Complainant.

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Reports of Cases in the High Court of Chancery of Maryland 1846-1854
Volume 200, Volume 4, Page 279   View pdf image (33K)
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