And although lineal descendants ad infini-mitted by representation beyond brothers' tum may share in the inheritance of an intestate's real estate, yet upon the received construction of this proviso, as among collateral descendants, except only the instance of the intestate's brothers' and sisters' children, proximity of blood alone gives title to it. And in this case, there being those in existence at the death of the intestate of greater degree of proximity of blood to him, it follows therefore that the grandnephews and grandnieces who made claim in the court below have no right to share in the inheritance." and sisters' children, and of course those beyond that must depend upon "proximity of blood alone," just as he said. The only reason he gave why those grandnephews and grandnieces could not inherit was because there were in existence those of greater degree of proximity of blood, all of whom were included in section 19. Unquestionably, if there had not been nephews and nieces in existence, the grandnephews and grandnieces would have inherited from Dr. Amos, and would have done so under section 19, and cousins, who come under section 21, could We do not at all question that statement have had no standing until all included in of the learned judge, but cannot, as the ap- sections 19 and 20 were shown to be extinct. pellants do, apply the language used by him It is not a question whether cousins are to a state of facts wholly different from those more nearly related than grandnephews and he was considering and passing upon. In grandnieces-that might depend upon how that case, as we have seen, the court was you determine the degrees-but the question determining the respective rights of nephews is what order our statute of descents fixes, and nieces, who were on one step, and and, without violating that statute, you cangrandnephews and grandnieces, who were on not give those embraced in section 21 the a lower step, of the ladder of descent; but right to inherit before those included in secall of whom were in the classes of heirs in- tion 19. As we have seen, section 1 of arcluded in section 19, if they could inherit ticle 46 says the lands, etc., "shall descend at all from the intestate. That section pro- in fee simple to the kindred, male and fevides that "the estate shall descend to the male, of such person, in the following order, brothers and sisters of such intestate of the to wit." Even a father or mother cannot whole blood, and their descendants in equal inherit under section 21 until all entitled degree, equally." Grandnephews and grand- under section 19 are extinct; and it must be nieces were not "descendants in equal de- conceded that nephews and nieces are entigree" with nephews and nieces, and there- tled under the latter, even if it be denied fore the estate did not descend to them, un- that grandnephews and grandnieces are. The less they could by representation stand in appellants have to go up to the intestate's the place of their deceased parents, who grandfather, and then down to grandchilwere nephews and nieces, and consequently dren of their grandfather, and they can only in equal degree with the other nephews and do that by virtue of section 21. We are nieces. But as section 27 provided "that then of the opinion that the appellees, as there be no representation admitted among grandnieces of the intestate, are entitled to collaterals after brothers' and sisters' chil- the real estate to the exclusion of the appeldren," and they were not children, but grand- lants, who can only take under section 21, children of the brothers and sisters, of course which by its terms is subordinate to section there could be no representation by them. 19, and that all that McComas v. Amos deNephews and nieces are higher up the ladder cided was that grandnephews and grandthan grandnephews and grandnieces, and nieces could not share with nephews and therefore "proximity of blood alone" gave nieces, because under section 27 the latter them title to the real estate, to the exclusion take by representation the shares of their of those descendants of brothers and sisters parents, while the former do not. That was who were a degree below them in “proximity all that was before the court affecting this of blood." That is all that Judge Alvey subject, and we are sure Judge Alvey had no could have meant, and in our judgment it is intention of determining in that case the all that he said, when taken in connection rights of classes who take under the statute with the facts he had before him. In stating which were not before him; but the lanhis conclusion above quoted, he said: "And guage used by him was unquestionably apin this case, there being those in existence plied to the facts before the court in that at the death of the intestate of greater degree case, and we have no doubt about the corof proximity of blood to him, it follows there- rectness of his conclusion. fore that the grandnephews and grandnieces have no right to share in the inheritance." Is not the necessary implication to be drawn from that statement that they would have had the right to share but for the nephews and nieces who were in existence? Judge Alvey, in the passage quoted above, was distinguishing between lineal descendants who may, ad infinitum, by representation take, In Garrison v. Hill, 81 Md. 211, 31 Atl. 794, and Graham v. Whitridge, 99 Md. 289, 57 Atl. 609, 58 Atl. 36, 66 L. R. A. 408, cited by the appellants, the controversy in each case was also between nephews and nieces, on the one hand, and grandnephews and grandnieces, on the other. There is no case that we have been able to find which casts the slightest doubt on the right of grand was no sister, brother, nephew, or niece liv- | and, after a careful investigation of the deing at the death of the intestate under such a statute as ours. cisions in other states, we have found none that sustain the contention of the appellants. There are cases which hold, as McComas v. nephews and nieces take to the exclusion of grandnephews and grandnieces; but in none of them have we found any intimation that, where there are no brothers or sisters or nephews or nieces, grandnephews and grandnieces do not take. If there had been no cousins, it would scarcely have been contended that the appellees would not have been entitled to the estate, as we have already said in reference to the realty. Section 129 of article 93 is: "After children, descendants, father mother, brothers and sisters of the deceased, and their descendants, all collateral relations in equal degree shall take, and no representation among such collaterals shall be allowed; and there shall be no distinction between the whole and half blood." This section and section 126 would seem to make the case as to the personalty even stronger than that of the realty, as section 126 expressly says, "child or descendants of a brother or sister," and section 129 in terms postpones such collaterals as the appellants, to take after "brothers and sisters of the deceased and their descendants." In Shriver v. State, 65 Md. 285, 4 Atl. 679, Judge Miller, in speaking of a brother (James) of the intestate, said: "The onus is upon the plaintiff to show that James died before the intestate, leaving no children or descendants, and if he fails to show this he can recover only onefourth." As the appellees are entitled to distribution under section 126 of article 93, we are unable to understand upon what principle those who claim under other sections, which only confer rights after those in section 126 are extinct, can displace the latter. The statute seems to us to clearly give the right of distribution to the grandnieces in preference to the cousins. 2. In the distribution of personalty, after the statute has provided for lineal descent, | Amos did, that, under a statute such as ours, and that, if there be a father and no child or descendant, the father shall have the whole, section 126 of article 93 provides that: "If there be a brother or sister, or child or descendant of a brother or sister, and no child, descendant or father of the intestate, the said brother, sister or child or descendant of a brother or sister, shall have the whole." It seems to us that there ought to be no doubt about the meaning of that section, when taken in connection with section 127, which is: "Every brother and sister of the intestate shall be entitled to an equal share, and the child or children of a brother or sister of the intestate shall stand in the place of such brother or sister." If an intestate had a brother and a sister, and both were living at the time of his death, each would take one-half of the personalty, exclusive, of course, of the widow's share. If the brother was living, and the sister was dead, but left one child surviving her, then, under section 127, the brother and the child of the sister would each take one-half. Or if the brother had died without leaving a child, and the sister left a child, then such child would take the whole. But if neither of them left children, but one left a grandson, then the grandson, who would be a grandnephew of the intestate, would take the whole. Section 126 says "the child or descendant of a brother or sister shall have the whole." That does not limit the distribution to a "child," but to a "child or descendant," and must mean that if there be no brother, sister, or child of a brother or sister, but there is a descendant of a brother or sister, such descendant would take before any other collateral relations, excepting in so far as section 128 provides for the mother taking a share under certain conditions. The case of McComas v. Amos, 29 Md. 120, is supposed to be contrary to that conclusion, but we do not find it so. There Judge Alvey had under consideration what are now sections 127 and 129 of article 93. He said that the word "descendants," as used in section 129 (section 131, art. 93, Code 1860, which he was referring to), was construed to mean children of such brothers and sisters; but he did not construe the words "or child or descendant of a brother or sister" in section 126 to mean child alone, in determining who was to take. He was in that case, as in the later case, on page 132 of 29 Md., considering the rights of nephews and nieces, on the one side, and grandnephews and grandnieces, on the other, and not, as in this case, whether grandnieces are to be excluded from distribution by cousins. There is no case in this state in which the precise question 3. We do not deem it necessary to further prolong this opinion by discussing the degrees of relationship at common law, as we have already sufficiently expressed our views on that subject; but we do not want to be understood as agreeing with the appellants as to the relationship of these parties. The appellants claim as descendants of the grandfather of the intestate, while the appellees claim as descendants of a sister of the intestate. If therefore we did undertake to determine the degrees of relationship, we could not properly do so by taking the grandfather as the common ancestor; but we prefer to base our decision on the interpretation of the statutes, and are of the opinion that although grandnephews and grandnieces cannot take when there are nephews and nieces, because of the proximity of blood of the latter as compared with the former, when nephews and grandnieces do take as descend-| so on, ad infinitum." In the same case the ants of a brother or sister of the intestate court said that the rule of representation to the exclusion of cousins, because the latter cannot take until those in prior sections (section 19 of article 46 and section 126 of article 93), which include grandnephews and grandnieces, are shown to be extinct. before Acts 1820, c. 191 (1 Dorsey's Laws, p. 745), applied to the descending or collateral line, "in any the remotest degree." The act of 1820 contained a proviso as to representation, but did not change the law of inherit ance. The words "proximity of blood alone gives title," as used by Judge Alvey, applied to the case then in hand, where the contest was between nephews and nieces and grand We are, for the reasons given, of the opinion that the decree of the lower court must be affirmed, both as to the realty and personalty. Decree affirmed; the appellants to pay the nephews and grandnieces. As between these costs above and below. It WORTHINGTON, J. (concurring). seems to me too plain for argument that, where lands are acquired by purchase, the only way in which the first cousins of the intestate can, in this state, inherit from the intestate, is under section 21 of article 46 of the Code of 1904, which reads as follows: "Sec. 21. If no brother or sister of the whole or half blood, or any descendant from such brother or sister, then to the father, and if no father living then to the mother, and if no mother living, then to the grandfather on the part of the father, and if no such grandfather living, then to the descendants of such grandfather in equal degree, equally." Now first cousins are descendants of a common grandparent, and it is only by reason of their being such descendants that they are entitled to share in the inheritance, under the statute to direct descents. Section 19 provides for brothers and sisters of the intestate of the whole blood and their descendants. Section 20 provides for brothers and sisters of the intestate of the half blood and their descendants. Section 21 provides for other collateral descendants after the collateral lines under the two preceding sections are exhausted. The word "descendants" means descendants to "the remotest degree." Maxwell v. Seney's Lessee, 5 Har. & J. 25. This is the plain reading of the statute, and argument as to its proper construction would seem to be wholly unnecessary. It is contended, however, that this court has construed the law differently, and the case of McComas v. Amos, 29 Md. 140, where It is said that, "there being those in exist ence of a greater degree of proximity of blood, the grandnephews and grandnieces * have no right to share in the inheritance," is cited to support this contention. But in that case the court was dealing with a proviso in regard to representation, and not with the general rules of inheritance. This is made perfectly clear by the reference in this opinion, written by Judge Alvey, to the case of Maxwell v. Seney's Lessee, 5 Har. & J. 23, where it was said that: "If a nephew be dead leaving a child, that child is considered by representation, in the same degree as his father would have been, if living, and proximity of blood alone gives title, because there is, since the act of 1820, no representation among collaterals beyond brothers' and sisters' children, and the grandnephews and grandnieces were excluded by the existence of nephews and nieces. As to personal property article 93, § 126, of the Code of 1904, in That section is as my judgment controls. follows: "Sec. 126. If there be a brother or sister, or child or descendant of a brother or sister, and no child, descendant or father of the intestate, the said brother, sister, or child or descendant of a brother or sister shall have the whole." Here again by sections 127 and 129 no representation amongst collaterals is allowed, beyond brothers' and sisters' children. No effort on my part to elucidate these provisions of the Code could improve on the admirable opinion delivered by BOYD, C. J., in this case, and without attempting to review the former decisions of this court in regard to the subject, none of which decisions could change the plain language of the statute, and none of which attempt to do so, I think the decree of the lower court, in this case, is entirely right, and is properly affirmed. BRISCOE and SCHMUCKER, JJ., dissent. (109 Md. 641) RICHARDSON v. ANDERSON. (Court of Appeals of Maryland. Jan. 21, 1909.) 1. ASSIGNMENTS FOR BENEFIT OF CREDITORS (8 186*)-SET-OFF-AFTER-ACQUIRED CLAIM. A debtor of an assignor for the benefit of creditors acquiring claims against the assignor after execution of the assignment may not set them off against the claim of the assignee. [Ed. Note.-For other cases, see Assignments for Benefit of Creditors, Cent. Dig. 561; Dec. Dig. § 186;* Set-Off and Counterclaim, Cent. Dig. 123.j 2. ASSIGNMENTS FOR BENEFIT OF CREDITORS (§ 186*)-SET-OFF-CLAIMS NOT DUE BEFORE ASSIGNMENT. when the assignment was executed, as accommoA debtor of assignor for creditors, liable, dation indorser of a note of the assignor, not yet due, being afterwards required to pay it, may not set off the amount paid against the claim of the assignee. [Ed. Note.-For other cases, see Assignments for Benefit of Creditors, Cent. Dig. 88 559-561; Dec. Dig. 186;* Set-Off and Counterclaim, Cent. Dig. § 123.1 STATEMENT FROM plaintiff. Defendant appeals. Reversed and remanded for new trial. 8. EVIDENCE (§ 354*) [Ed. Note.-For other cases, see Evidence, Cent. Dig. 1432; Dec. Dig. § 354.*] Argued before BOYD, C. J., and PEARCE, SCHMUCKER, BURKE, WORTHINGTON, and THOMAS, JJ. H. Findlay French and Thomas Mackenzle, for appellant. W. Harry Holmes, for appellee. THOMAS, J. The appeal in this case brings up for review the rulings of the court below in sustaining plaintiff's, appellee's, demurrer to defendant's, appellant's, third, fourth, and fifth pleas, in admitting the evl 5. TRIAL (§ 386*)-TRIAL BY COURT-DECLA-dence in the first and second bills of excepBATIONS OF LAW-REQUESTS. The court sitting as a jury should be instructed as to the law applicable to the facts of the case, leaving it to the court, sitting as a jury, to find facts necessary to entitle plaintiff to recover, which is not done by a prayer that if the court, sitting as a jury, shall find from the evidence that defendant is indebted to plaintiff in any sum, then the court, sitting as a jury, shall assess the damages in such sum as the court, sitting as a jury, shall find from the evidence defendant is actually indebted to plaintiff; it not stating the facts that must be found in order that an indebtedness may be found, and by it questions of law, as well as of fact, being submitted to the court, sitting as a jury. tion, and the action of the court on the prayers, and defendant's special exception to the modification of his prayer. The Maryland Grain Agency of Baltimore city, a corporation, on the 27th of February, 1908, made a deed of trust for the benefit of creditors to the appellee. At the time of the assignment the appellant was the manager of said agency, and the appellee shortly after the assignment employed him to make out a statement of the assets of the agency from its books. After the statement was made out, he and the appellant went over it together, "and verified it with the books" of the agency. This statement showed that the appellant was indebted to the agency for the balance due on account between them to the amount of $1,781.41, which the appellant, acA waiver or abandonment of defendant's cording to the testimony of the appellee, said claim for extra services rendered his employ- was correct with the exception of two items, er with an understanding that it would pay him one of $72.44 and the other of $138, which therefor cannot be found from the mere fact that he had not collected it when the employer the appellee deducted, leaving a balance of assigned for the benefit of creditors, he having $1,541.71, and, upon failure of the appellant repeatedly demanded payment, but the employ- to pay this balance, the appellee on the 9th er having, without any denial of his right to of April, 1908, brought suit to recover it. compensation, postponed, from time to time, the adjustment of the matter. [Ed. Note.-For other cases, see Trial, Cent. Dig. 902; Dec. Dig. § 386.*] 6. MASTER AND SERVANT (§ 72*)-Extra SERVICES-WAIVER OF CLAIM FOR COMPENSA TION. [Ed. Note.-For other cases, see Master and Servant, Cent. Dig. § 87; Dec. Dig. § 72.*] 7. PLEADING (8 411*)-SET-OFF-WAIVER. While a set-off must be specially pleaded, and evidence in support of it is not admissible unless so pleaded, yet, though it is not pleaded, such evidence having been introduced without objection, and the right to recover not being confined by the prayers to the pleading and evidence, the jury or court sitting as a jury may find the set-off in favor of defendant. [Ed. Note.-For other cases, see Pleading, Cent. Dig. 1384; Dec. Dig. § 411.*] 8. TRIAL ( 285*)—INSTRUCTIONS-CONSTRUC TION. The correctness of a granted prayer, which does not refer to the pleadings, and which is not affected by any other prayer referring to the pleadings, must be determined with reference to the evidence without consideration of the pleadings. The defendant in his testimony states that while he was employed as bookkeeper for the agency in 1895, at a salary of $100 a month, he was employed by the agency to do extra work on its books, for which it agreed to pay him whatever such extra services were worth; that the agency never paid him; that the matter was brought up several times at the meetings of the directors, but each time it was postponed for future action and settlement; that such services were worth $500; that he had never said anything to the appellee about his claim for such extra services until the morning of the trial. Defendant's first and second pleas were never indebted as alleged, and never promised as alleged. His third plea for defense on equitable grounds states that the deed under which plaintiff claims was a deed of trust for [Ed. Note.-For other cases, see Trial, Cent. the benefit of the creditors of the said agenDig. 699; Dec. Dig. § 285.*] cy, dated the 27th day of February, 1908, and Appeal from Baltimore City Court; Alfred that defendant holds the promissory note of S. Niles, Judge. said agency dated July 1, 1907, and payaAction by Bruner R. Anderson, trustee, ble six months from date, in favor of one against James W. Richardson. Judgment for | George H. Merryman, for $1,100, and by him indorsed to the defendant subsequent to the execution of said deed of trust, which he is entitled to have applied as an equitable setoff against the, claim of the plaintiff. His fourth plea, for defense on equitable grounds, alleges that the deed under which plaintiff claims was a deed of trust for the benefit of creditors, and that the defendant, with George H. Merryman and Wm. Clement Brooke, indorsed a promissory note for $2,500, dated December 14, 1908, and payable four months after date, drawn by the said agency in favor of itself, which note was on said date discounted by the Third National Bank of Baltimore city for the use of said agency; that the said note was not paid and was protested, and that the defendant and said Merryman were called upon to pay and did pay the same, and that the defendant paid one-half thereof, amounting to $1,253.19, and that, by reason thereof, he is entitled to have said amount applied as an equitable setoff against the plaintiff's claim. The fifth plea, for defense on equitable grounds, states the two claims set out in the third and fourth pleas, and says that, by reason thereof, there is no liability on his part to the plaintiff. The claim referred to in the third plea is a promissory note acquired by the defendant after the execution of the deed of trust, and the one set out in the third plea is on a promissory note on which he was liable as accommodation indorser before the execution of the deed of trust, but which came due after the date of the deed of trust, and was paid in part by him after the institution of the suit. A claim of the assignee due at the time of the assignment, set off the amount he so paid against the claim of the plaintiff? The rule as stated by Burrill on Assignments (5th Ed.) § 403, is "that an assignee for the benefit of creditors takes the property subject to all existing equities. The equities need not exist at the inception of the debt. It is sufficient if they exist prior to the assignment. claim acquired after the assignment cannot be set off against the assignee, nor a liability, existing but not due at the time of the assignment, even if it becomes due before the suit was commenced." But in note 7 on page 642 it is said that "where the claim in favor of the estate of the assignor is not due at the time of the assignment, but the claim against the estate is due, an equitable set-off in favor of the assignor's debtor will be allowed." Or as stated in Waterman on SetOff, § 131: "Where one claiming a set-off has a demand against the other presently payable, and the other party is insolvent, the former may claim to have the set-off made, though the demand of his adversary against him has not become payable." So in the case of Colton v. Drovers' Bldg. Ass'n, supra, where the association had at the time of the appointment of receivers for the South Baltimore Bank a deposit with the bank of $357.23, while the bank held its promissory note, not then due, for $1,000, the court, after a careful examination of the decisions in other states, held, in accordance with the great weight of authority, that the association was entitled to set off the amount of its deposits against the note of the bank. The reason assigned for this rule is that the right of the creditor of the insolvent to the set-off exists at the time of the assignment, and that the assignee of the insolvent takes the note in favor of his assignor, not yet due, subject to this right. Where, on the other hand, the claim against the insolvent or assignor is not due at the time of the assignment, and the claim in favor of the insolvent or assignor is due, the right to a setoff does not exist at the time of the assignment, and the assignee takes the debt in favor of the assignor in trust for the benefit of the creditors, against whom a set-off cannot be subsequently acquired. In other words, in order that there may be a set-off in favor of the creditor of the assignor, it must exist at the time of the assignment by virtue of a claim then due. The first question, then, presented by the third plea, is: Can a debtor of an assignor for the benefit of creditors acquire, after the execution of the assignment, claims against the assignor, to be applied by him as a set-off to his debt due the trust estate? If this can be done, then a debtor by the purchase, for a very small consideration, depending upon the extent of the insolvency of the trust estate, of claims against the assignor, can acquire a preference in the distribution of the trust estate to the full extent of his debt, thus taking from the creditors what they are entitled to, and preventing a pro rata distribution among them. Such a result would be unjust and inequitable, and can not be tolerated in either law or equity. Burrill on Assignments (5th Ed.) § 403; Waterman on Set-Off (2d Ed.) §§ 106, 123; Am. & Eng. Ency. of P. & P. § 2, pp. 723, 724; Colton v. Drovers' Bldg. Ass'n, 90 Md. 85, 45 In an extensive note to Fera v. Wickham, Atl. 23, 46 L. R. A. 388, 78 Am. St. Rep. 431. | 17 L. R. A. 456, the author says: "While The proposition presented by the fourth the decisions are not uniform in reference to plea is not so free of difficulty. The precise either class, there is a decided weight of auquestion here is: Can a defendant who at thority on one side in each case, and that the time of the execution of a deed of trust weight is in favor of the set-off where the for the benefit of creditors was liable as an immature debt is owing to the insolvent and accommodation indorser of a promissory note against it where it is owing by him." of the assignor, not yet due, which he is call- the case of Skiles v. Houston, 110 Pa. 254, 2 ed upon to pay in part after the assignment, Atl. 30, where when plaintiff's intestate died In |