Crotty v. Browning

Marbury, C. J., delivered the opinion of the Court. In this case, an alleged creditor of Oliver V. Hammel, late of Baltimore City, deceased, filed a bill of complaint in Circuit Court No. 2 of Baltimore City against the administratrix and the heirs at law of said deceased. The bill recites the fact that the deceased died intestate, and gives the names of his heirs and also states that the appellant Crotty was appointed administratrix of his estate by the Orphans’ Court of Baltimore City. It is ³¹⁴ then alleged that Hammel, at the time of his death, was indebted to the complainant in the sum of $9,240.00 for services rendered, enumerating them and stating that they were rendered upon Hammel’s promise to pay.

Then it is stated that Hammel died “possessed of meager personal property, totally insufficient to pay his debts, but seized and possessed of valuable real estate” situated in Baltimore City, which is shown by copies of two deeds. The final allegation is that the personal property of Hammel being insufficient to pay the complainant’s claims against his estate, she is entitled to have his real estate sold to pay his indebtedness. The prayers of the bill are for such a sale, for a decree that the estate is indebted to the appellee in the sum claimed, and for a permanent injunction preventing defendants from transferring the real estate, and for further relief. The bill was not sworn to.

The defendants demurred on the ground that complainant’s claim was not filed against the estate, that the administratrix had by law 90 days in which to file an inventory, and, until such inventory was filed, the complainant did not know the value of the personal estate and was in no position to ask any court for an order to sell the real estate. The defendants’ demurrers were overruled on February 20, 1950 and an appeal was taken to this court. Such an appeal was permissible at that time, and therefore it is before us for consideration. The point raised by appellants is that the Orphans’ Court has full power to administer the personal estate of a decedent, and that until such estate is administered to such an extent that it can be seen from the record that there is not sufficient personal estate to pay debts, no creditor has a right to file a bill to sell the real estate.

It is further contended that such a creditor must file a claim in the Orphans’ Court and, if it is denied, he must bring the suit in a law court, and that Article 16, Section 242 contemplates such action. They trace the history of this section and reach the conclusion that the Act of 1785, Chapter 72, which was the antecedent of the ³¹⁵ present Article 16, Sections 242 and 243, the latter section enacted by Acts of 1884, ch. 396, was not intended to interfere with the procedure and regulations provided in Chapter 101 of the Acts of 1798 and now contained in Article 93 of the Code for the settlement of decedents’ estates. There is no case which directly passes upon this rather unique argument, but it certainly is contrary to the practice of the Maryland bar. It has been the custom for a creditor to file his bill of complaint making the allegation that the personal estate is insufficient, and, after proving his claim and the insufficiency of personal assets, to get a decree under which the real estate is sold and conveyed to a purchaser.

There are perhaps thousands of pieces of real estate which have been sold under this procedure, without regard to the necessity of either filing a claim in the Orphans’ Court, or waiting upon the records in the Orphans’ Court to show insufficiency of assets. The appellants refer to the opinion of Judge McSherry in Van Bibber v. Reese, 71 Md. 608 , 18 A. 892 . In that case a testator died leaving a considerable estate, both real and personal. His widow, who was also his executrix and his sole residuary legatee and devisee, stated an account in the Orphans’ Court showing a balance in her hands amounting to $7,704.10 which went to her as residuary legatee.

Shortly prior to this time, she had sold a house belonging to her husband’s estate to Dr. Van Bibber. The latter contended that some creditor might turn up who could file a bill for the sale of the real estate, and therefore he could not get a merchantable title to the property. The widow brought suit against him for specific performance, and, on this state of facts, the court said that the