Smith v. McAtee

Crain, J., delivered the opinion of this Court. . The attachment in this case was issued by the appellee to affect the proceeds of sale of the real estate of the wife, to pay the debt of the husband. The facts as presented in the record are, that Nicholas Leister and wife were citizens of this State until August, 1854, when they removed to Illinois, where they resided' when this attachment ⁴³⁵ issued. Before removing from the State Leister became indebted to the appellee, who has always resided in "Washington county, Maryland.

The fund in controversy was derived from the sale of -the real estate of Mary Gehr, the mother of Sarah Leister, the wife of Nicholas. Mary Gehr died in 1855, leaving real estate in Washington county, and by her last will and testament devised a child’s share of said estate to Sarah, the wife of Nicholas. In January, 1856, a bill was filed in the Circuit Court for Washington County against Leister and wife and the other devisees, for the sale of thereal estate for partition. The bill was answered by Leister and wife.

In their answer Sarah, the wife of Nicholas, claimed her portion of the estate as her sole and separate estate, free from the debts of her husband, and insisted that the same should not be divested from her by a sale thereof. Nicholas, the husband, disclaimed all right, title or interest at law or in equity to any portion of the estate of Mary Gehr, by virtue of his marriage with the said Sarah or otherwise. A decree was passed in the cause on th'e 12th of August, 1856, for the sale of the property, and in the decree it was provided that the proportion of the proceeds of the sale of the property, allotted to Sarah, should be deemed her separate estate, for her sole and separate use and benefit, free from any claim or control of her husband or his creditors. After the sale of the property the amount of the proceeds due Sarah was credited to her sole and separate use, and paid over to the appellant as her attorney, when it was attached by the appellee to pay the debt of her husband.

At the trial of the cause two bills of exception were taken by the appellant; the first to the admissibility of evidence, and the second upon the granting of the plaintiff’s and the rejection of the defendant’s prayers. To arrive at a proper solution of the questions to be determined by this appeal, we must ascertain the rights of ⁴³⁶ Sarah, the wife, under the will of her mother and the proceedings and decree of the Court, and whether the proceeds of the estate audited to her and received by Mr. Smith, as her attorney, were liable to be attached in our Courts for the payment of the husband’s debt. In 1841, the legislature recognizing the just and equitable right of the wife to the enjoyment of her real estate, passed a law to protect the real estate of the wife from the debts of the husband. This legislation in favor of the wife against the creditors of the husband so favorably impressed itself upon the public mind, that by the 38th Section of the 3d Article of the Constitution of 1851, the legislature was required to pass laws necessary to protect the property of the wife from the debts of the husband during her life, and for securing the same to. her issue after her death.

The legislature acknowledging the wisdom of this provision in obedience to the mandate of the Constitution, enacted the law of 1853, Chapter 245. That act provides that all the property of the wife acquired or received, after her marriage, by purchase, gift, grant, devise, bequest, or in a .course of distribution, shall be protected from the debts of the husband, and not in any way be liable for the payment thereof. And to effect the objects of the law, the wife was given the benefit of all such remedies for her relief and security as then existed, or should be devised in the Courts of law or equity, without the necessity of the interposition of a trustee. The object contemplated by this law is too clear for doubt; by its enactment the legislature intended to give full protection and security to the property of the wife against the creditors of the husband, as previous to its enactment the cases of Peacock vs. Pembroke and Clarke, 4 Md. Rep., 280 , and Turton’s Ex’rs vs. Turton, 6 Md. Rep., 375 , had been decided by this Court, and in each case the property was adjudged to be the husband’s and subject to the payment of his debts.

This act, soon after its passage, received a judicial inter ⁴³⁷ pretation in the case of Unger & Wife vs. Price, 9 Md. Rep., 552 . In that case, Mrs. Unger had sold her potential right of dower, and invested the money in personal property, and it was held by this Court to be exempted from the debts of the husband. The case of Mrs. Leister is equally strong, and comes within the principle settled in Unger and Wife vs. Price. She was the devisee of real estate, and with the consent of her husband the proceeds of sale of the property under the decree of a Court of Equity were held to her sole and separate use, so audited to her and paid over to the appellant.

But the appellee insists, that the proceedings and decree were not admissible evidence against him, because they