Hoffman ex rel. Hoffman v. Rice

Miller, J., delivered the opinion of the Court. Our decision on the former appeal in this case ( 35 Md., 344 ,) has settled the question as to the right of the appellees, his judgment creditors, to intervene and claim the husband’s interest in tbe fund arising from the sale of his wife’s real estate, without reference to the time when the debts for which these judgments were rendered, were contracted. The wife before her marriage, which took place in 1845, was seised in fee of an undivided ninth part of this land, and her husband’s interest as tenant by the curtesy initiate or otherwise, was not affected by the Code adopted in 1861, but the right of his judgment creditors to seize and sell that interest under executions on their judgments was controlled by the Act of 1841, ch. 161, which we said was not repealed, but in effect embodied in and continued by the Code. It had been previously decided that the effect of that Act was not to destroy tenancies by the curtesy, nor liens of judgments on such interests.

It suspended the right of execution during the life of the wife, but left the judgment lien perfect on the life estate of the husband to be enforced on the death of the wife. Anderson vs. Tydings, 8 Md., 227 ; Logan vs. McGill and wife, 8 Md., 461 . If therefore the land had not been sold the appellees could have enforced their judgments against this interest immediately upon the death of the wife, in case the husband survived her. But the land has been sold for the purpose of partition, during the life of the husband and wife, and it hence became necessary to set apart and assign to the husband a money equivalent for his interest.

This conversion, however, we have said, did not withdraw from the proceeds of sale the protection afforded by the Act of 1841. In that respect we adopted the views of the Chancellor in Hall vs. Hall, 4 Md. Ch. Dec., 288, and said “that the proceeds arising ²⁸⁶ from the sale of the wife’s real estate must he regarded as standing in the place of the real estate, and only so much thereof as may be allowed the husband in lieu of his interest as tenant by the curtesy, is liable to his creditors upon the death of the wife.” By this we decided and intended to decide that whatever sum should be thus properly allowed to the husband, the appellees as his judgment creditors were entitled to upon the death of the wife. In the auditor’s account the amount thus to be allowed the husband is stated to be $2030.49, and the order from which the present appeal is taken, directs the trustees to invest this money and pay to the wife the interest thereon during her life, and after her death to pay the principal sum to the appellees on account of their respective