Carey v. Dennis

Bartol, J., delivered the opinion of this court. This cause has been argued with very great ability and care, and several interesting questions iiave been presented for the consideration of this court; but in the view which we have taken of the case, after a most careful examination of the authorities cited, and a mature consideration of the main question involved, we are of opinion that the ruling of the Circuit Court is correct, and that the decree ought to be affirmed. The proceeding was instituted under the act of 1785, ch. 72, sec. 5, which authorizes a Court of Chancery to decree the real estate of a deceased party to be sold for the payment of his debts, in case of an insufficiency of his personal assets. That section provides, “that if any person hath died, or shall hereafter die, without leaving personal estate sufficient to ¹⁶ discharge the debts by him or her due, and shall leave real estate which descends,” &c., &e., “the chancellor shall have full power and authority, upop application of any creditor of such deceased person, after summoning,” &c., “and hearing as aforesaid, and the justice of the claim of such creditor is fully established, if upon consideration of all circumstances it shall appear to the chancellor to be just and proper that such debts should be paid by a sale of the real estate, to order the whole or part of the real estate so descending or devised to be sold for the payment of the debts due by the deceased.” The provisions of this section were afterwards extended to defendants of full age, by the 2nd section of the act of 1818, ch. 193.

To authorize a decree for the sale of lands under these statutes, it is necessary that there be an indebtedness existing in the lifetime of the deceased. By which we mean, not that the alleged debt must be payable in his lifetime, but that the debt must be shown to be existing. In this case the proof shows that the writings obligatory of Levin Carey, the deceased, which are exhibited as the evidence of his debt, were voluntary gifts, and it has been argued on the part of the appellees, that for that reason alone, if there were no other objection, the complainants are not entitled to enforce their payment by a proceeding under the act of 1785. Upon that question, however, we do not mean to express any opinion, as " the case before us does not demand it.

It appears from the evidence in the cause that they were not delivered, nor designed to be delivered to the obligees till after the death of Levin Carey; during his lifetime they were Inchoate papers, revocable at his pleasure, not intended by him to constitute any binding obligation upon himself or his estate, or to confer any right upon the obligees, or to have any effect whatever till after his death. If this be so, then they are not evidences of debt, but in the nature of testamentary papers. This principle is abundantly established by the numerous authorities cited by the appellees’counsel, and it is unnecessary for us to refer to them more particularly. In the language of Justice Bulier, “the cases have established that an instruid ¹⁷ meet in any form, whether a deed poll or indenture, if the obvious purpose is not to take place till after the death of the person making it, shall operate as a will.” Habergham vs. Vincent, 2 Ves., Jr., 231.

It has been contended, on the pari of the appellants, that the operation of the instrument as testamentary or otherwise, is a question of intention, and that inasmuch as the evidence shows that Levin Carey, at the time of executing these papers, did not suppose he was making a will, they cannot be held to operate as testamentary, without defeating his intention. This argument was urged in the case of Habergham vs. Vincent, and is conclusively answered by the learned judge in the opinion from which we have just quoted; he says, (page 230,) “But it was argued for the plaintiff that the testator did not intend to make a will when he executed a deed, and therefore it cannot operate as a will. Whether the testator would have called this a deed or a will, is one question; whether it shall operate as a deed or a will, is a distinct question, that is to be governed by the provisions of the instrument. A deed must take place upon its execution, or not at ali.

It is not, necessary for a deed to convey an immediate interest in possession, but it must take place as passing that interest to be conveyed at its execution; but. a will is quite the reverse; it, can, only operate after death.” The rule, as thus expressed by Justice Buller, and as deducible from the authorities, we understand to be, that where an instrument does not operate inter vims, but, is made to depend for its whole operation tjpon the event of the death of the maker to consummate if, then it can only take effect as iesta¡meutary. In our opinion, this does not in any manner conflict with the principles announced by the late Court of Appeals, in Hannon vs. Robey, 6 Gill, 465 , and 9 Gill, 440 ; nor with the decision of this court in The Mayor & City Council of Baltimore vs. Williams, 6 Md. Rep.,