Lee v. Keech

Bond, C. J., delivered the opinion of the Court. There is one question, only, raised on this appeal: Whether a judgment creditor of an heir may file and prosecute a caveat to a will of the ancestor of that heir, by which real property is devised to other persons. The appellant, Miss Virginia Lee, held a judgment against H. Hobart Keech for $989.15, recovered originally in Baltimore City, in 1914,- and later recorded in Harford County. By statute (Code, art. 26, secs. 19 and 20), the creditor thus became entitled to a lien on any interest of the debtor in real estate in the latter county.

The mother of the debtor, Mrs. Hattie B. Shanahan, of Harford County, owned a farm of one hundred and three acres there, assessed for taxes at $7,755, and valued considerably higher. On the 23d day of June, 1925, she made a will in which she devised her property to the wife of her son, the debtor, and to his sister, the other heir of the testatrix, in equal shares. The testatrix died on the following December 18th, 1925, and letters were granted to her two children, as executors. The appellant then filed the caveat, as a judgment creditor of the one heir, H. Hobart Keech, and after a hearing this was dismissed, because, as stated in the order of the orphans’ court, the petitioner had “no right or interest in the property or estate of said testator necessary to maintain a suit to caveat the last will and testament of the said Hattie B. Shanahan.” The appeal is taken from that order.

The question has never before been raised in this -Court. It has arisen, and has been differently decided, in courts of other states. Smith v. Bradstreet, 16 Pick, 264; Re Langevin, 45 Minn. 429 ; Watson v. Alderson, 146 Mo. 333 ; Mullins v. Fidelity & Deposit Company, 30 Ky. L. Rep. 1077; ³⁶ Bloor v. Platt, 78 Ohio St. 46 ; Seward v. Johnson, 27 R. I. 396; Shepard’s Estate, 170 Pa.

St. 323; Lockard v. Stephenson, 120 Ala. 641 ; Bank of Tennessee v. Nelson, 3 Head (Tenn.) 634; Re Brown, 47 Hun. (N. Y.) 360. And see review of cases in notes, L. R. A. 1918A, 459. Hot all of these cases have dealt with exactly the same legal situation as that presented here.

In Watson v. Alderson, supra, the judgment creditor had levied execution on the heir’s interest and bought it in at the sale, before contesting the validity of the will, and in Smith v. Bradstreet, and Bloor v. Platt, supra, execution had first been levied on the interest of the heir. Text book writers give different conclusions on the point. The sixth edition of Schouler on Wills, sec. 746, states that a judgment creditor of the heir may contest the will of the ancestor; Page on Wills, sec. 325, states that he may not. In all jurisdictions, either by statute or by general principles of law, the right to caveat is limited, as it is in Maryland, to persons who have an interest in the property.

Johnston v. Willis, 147 Md. 237 . And -the decision of the question here raised turns on the views taken of the nature of the interest a judgment creditor of the heir has, and of the nature of the interest so required by law for a caveat. Hot all interests in the debtor’s property will support a caveat; all authorities agree that the interest of a general creditor is not sufficient, that there must be more than the mere light a general creditor has to pursue the property, with a privilege of ultimately requiring payment of his debt from it. In our opinion, the legal requirement is that there must be, in addition, such an