Armiger v. Reitz

Schmucker, J., delivered the opinion of the Court. 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 judg ³⁴⁰ ment filed in the Superior Court for ‡‡,686.-15 due to Philip Reitz’s estatei)" 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. ³⁴¹ 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,