Armiger v. Reitz , 91 Md. 334 ( 1900 )

The appellants, who are attaching creditors of Charles L. Reitz, filed a bill in Circuit Court No. 2, of Baltimore City, asking to have his interest in remainder in his father's estate sold for the payment of their claims.

Two of the defendants, Charles L. Reitz and one of his creditors, holding a judgment against him antedating the issue of the appellants' attachments, demurred to the bill, and from the decree sustaining their demurrer this appeal was taken.

The material facts alleged in the bill, or appearing from the exhibits filed with it, are as follows: Philip Reitz died in January, 1898, leaving a will by which he gave his entire estate to his widow, Wilhelmina, for life or widowhood, with remainder in one-third thereof to his son, Charles L. Reitz. The estate consisted of real estate worth $16,000, two coupon bonds appraised at $1,780 and $331 in cash, making a total of $18,080 in value. The widow and the testator's brother, Lewis, were named in the will as executors. They qualified and, after paying the debts and funeral expenses, passed an account in the Orphans' Court by which they distributed the net personal estate, consisting of the two coupon bonds and a few dollars in cash, to the widow as life-tenant, subject to the provisions of the will, with remainder to the persons therein named. Of this remainder one undivided third was by the account distributed "to Charles L. Reitz, son of testator (subject to a judgment filed in the Superior Court for $4,686.15 due to Philip Reitz'sestate.)"

The judgment referred to in the account of the executors had been entered in their favor by confession against Charles L. Reitz on March 1, 1898, for a debt due by him to his father. He had also on the same day confessed a judgment in favor of Thomas G. Cranwell for $530.91, and on the following day a judgment was entered against him by default in favor of George W. Hunter for $923.45.

About two months after the entry of these judgments, amounting in the aggregate to $6,140.36, the appellants brought suits against Charles L. Reitz for debts, due to them respectively, amounting to $802.44, and, failing to reach him with process, they, on April 18th, 1899, caused attachments on two non ests to be issued and levied on his interest in the real estate left by his father and also to be laid in the hands of the executors of the latter's estate. The appellants, then, without procuring judgment of condemnation in their attachments, filed the bill in the present case. The bill does not aver that the attachments were laid in the hands of the executors before they made distribution of the personal estate, nor does the record show whether such was the fact.

The bill named as defendants the executors, one of whom is the life-tenant, and the judgment creditors, and it prays for a discovery of assets by the executors; for a sale of Charles L. Reitz's interest in his father's estate, real and personal, either subject to the widow's life estate or clear of the life-estate, the value thereof in that event to be allowed to her, and the remaining proceeds of sale to be applied to the payment of his debts; and that if a sale be decreed, the plaintiffs might be preferred to the judgment creditors in the distribution of the proceeds of the personal estate; and for an injunction, a receiver and an account. None of the debts, on which the judgments above mentioned are founded, are assailed or impeached by the bill, nor is any fraud alleged against the defendants.

To this bill Charles L. Reitz and Thomas G. Cranwell, one of his judgment creditors demurred and the Court by the decree appealed from sustained the demurrer.

The question to be considered by us is whether the bill and exhibits on their face present a case entitling the appellants to relief against the two demurring defendants, who are the appellees.

The appellants clearly have an adequate remedy at law against the interest of Charles L. Reitz, in the real estate of which his father died seized. Although Charles will not be entitled to the possession or enjoyment of this interest until after the death or remarriage of his mother, his title to it is a vested one, and as such is liable to execution. The appellants had already attached it when they filed their bill in the present case. They can, if their claims are enforceable, pursue their attachments to final judgment and execution in the ordinary way without the aid of a Court of Equity.

The widow is entitled to the possession and enjoyment of the real property so long as her estate therein lasts and neither the devisee in remainder nor his creditors can compel her to submit to a present sale thereof or to accept in money the estimated value of her estate in lieu of the specific use of the property. Nor can the appellants, who have only the inchoate lien of their attachments, force the appellee, Cranwell, who is a senior encumbrancer with the perfected lien of a final judgment, to submit to a sale free of his lien. In Morton v. Grafflin,68 Md. 560, this Court quoted with approval from Adams on Equity, the statement that the only remedy of a subsequent lien holder as against one who is paramount, is to redeem the prior lien and tack it to his debt, because the junior incumbrancer has no claim or equity against the paramount incumbrancer. That proposition is especially true of a case such as the present one where creditors, who have not acquired a perfected lien, seek to compel prior incumbrancers to submit to an immediate sale of an estate in remainder, which could only be made at a ruinous sacrifice.

The widow is also entitled to the possession and enjoyment of the personal estate during her life or widowhood, and the appellants cannot compel her to submit to a present sale of it or to a commutation of her interest therein. If the property, of which the personal estate is composed, was of such a character that the executors should have invested it under the direction of the Orphans' Court, instead of delivering it to the life-tenant, that tribunal was authorized by law to compel an investment by the executors upon the application of anyone having an interest in the remainder following the life-estate.

And even now, after the personalty has been delivered to the life-tenant, any persons interested in the remainder can, upon a proper bill filed for that purpose against the life-tenant, if they can make out a case of danger to their interest by reason of her possession of the property, compel her to give security for their protection. Boyd v. Boyd, 6 G. J. 32; Miller v.Williamson, 5 Md. 233. There is, therefore, no reason for the appointment of a receiver of Charles L. Reitz's interest in either the real or personal estate.

Furthermore, the debt of Charles L. Reitz to his father's estate is so large that it does not appear that he will be entitled to receive any portion of the personal estate when the time comes to divide it between the remainder-men. That it is the right and duty of an executor or administrator to retain, from the share of a distributee or the interest of a legatee in the personal estate, the amount due by the latter to the decedent, was declared to have been for many years the settled law in Maryland in the case of Gosnell, Trustee, v. Flack,76 Md. 426.

In Smith v. Donnell, 9 Gill, 87, a legatee in remainder was indebted to the testator in an amount greater than his share of the estate. The trustee in insolvency of the legatee, representing his creditors claimed, in the distribution of the estate in the Orphans' Court, to be awarded the legacy given by the will to his insolvent, because the latter had been absolved from his debt to the testator by his discharge in insolvency. Even under those circumstances the Court refused the claim of the trustee and held that the debt from the insolvent legatee must be set off against his share of the estate. Upon an appeal the judgment was affirmed by our predecessors, who declared in their opinion that to have permitted the trustee to receive the share of his insolvent legatee would have been "an act of flagrant injustice" to the other parties, between whom and the insolvent the estate of the decedent was by the terms of his will to be equally divided. The same proposition was upheld in a proceeding in equity in the case of Devries, Trustee, v. Hiss, 72 Md. 564-5, and it has been declared to be the law in many other States. Koons, Admr., v.Mellett, 7 L.R.A. 231, and cases there cited.

In the present case the legatee, whose share of the estate the appellants seek to have sold for the payment of his debts, is indebted to the estate to an amount which not only greatly exceeds his share of the personal estate, but will, if his mother should survive for some years longer, be more than equal to his share of the entire estate, real and personal.

It follows from what we have said that the appellants are not entitled upon the face of their bill and exhibits, either to a sale of the interest of Charles L. Reitz in the property in question, for the purpose of distributing the proceeds among his creditors, or to the appointment of a receiver of his interest, and therefore the decree sustaining the demurrers must be affirmed.

As the executors and the life-tenant did not demur to the bill, the decree appealed from did not dismiss the bill as to them, and we do not pass upon the right of the appellants to maintain the bill against them for a discovery of assets, or, after perfecting their lien and properly amending the bill, to require the life-tenant to give security for the protection of the parties interested in the remainder, after her death, in the personalty delivered into her possession by the executors.

Decree affirmed with costs.

(Decided June 14th, 1900.)