Carey v. Dennis

• Decision Date: 27 January 1859
• Citation: 13 Md. 1
• Parties: ELIJAH CAREY AND THOS. H. CAREY, v. THOMAS DENNIS AND WIFE, AND OTHERS.
• Court: Maryland Court of Appeals

13 Md. 1

ELIJAH CAREY AND THOS. H. CAREY, v. THOMAS DENNIS AND WIFE, AND OTHERS.

Court of Appeals of Maryland.

January 27, 1859

Bonds executed by a father in favor of his sons, and delivered to a third party, with directions " to take care of them, and deliver them to his sons, in case he died without a will," are mere voluntary gifts, revocable at pleasure, and not evidences of debt; and, though delivered to the sons after the father's death intestate, cannot have any operation, except as testamentary papers.

To authorize a decree for the sale of lands to pay debts under the act of 1785, ch. 72, sec. 5, there must be an indebtedness existing in the lifetime of the deceased: the debt need not be payable in his lifetime, but must be shown to be existing.

An instrument in any form, whether a deed or a bond, where the obvious purpose is that it shall not take effect till after the death of the party making it, is a will, and it matters not whether the party, at the time of executing it intended to make a will or not.

Where an instrument does not operate inter vivos, but is made to depend, for its whole operation, upon the event of the death of the maker to consummate it, it can only take effect as a testamentary paper.

To vest any interest in the obligee, or, in other words, to create a debitum in presenti, a delivery of the bond, in the lifetime of the obligor, to the obligee, or to some one for his use, is necessary.

Delivery is essential to the validity of every deed; it need not be made directly to the party who is to take, but may be made to a third person, to hold for him as his trustee; in such a case there is a present interest vested, the delivery being regarded in law as if made to the party himself.

But bonds placed in the hands of a third party as the agent of the obligor, and not intended to be delivered, and not, in fact, delivered to the obligees until after the death of the obligor, are not debts, but in the nature of testamentary papers.

In such a case, the party in whose hands the bonds were placed is the mere agent of the obligor, and such agency is revoked by his death, and cannot afterwards be executed, and the subsequent delivery of the bonds to the obligees, is a void act, which vested no right in them as creditors of the obligor.

APPEAL from the Equity Side of the Circuit Court for Worcester county.

This was a creditors' bill filed on the 17th of November 1854 by the appellants, two of the sons and heirs at law of Levin Carey, deceased, against the appellees, his administrator and other children and heirs at law, for the sale of the deceased's real estate, to pay his debts.

The bill alleges that Levin Carey was, in his lifetime, indebted to the complainant Elijah in the sum of $12,000, and to the complainant Thomas in the sum of $10,000, on his certain bills obligatory, dated the 9th of December 1853, which are exhibited with the bill, and being so indebted, and having real and personal estate of great value, died intestate in the year 1853, leaving as his children and heirs at law Joseph Carey, Nancy, wife of Thomas Dennis, Mary, wife of Peter L. Davis, Sophia T. Carey, and the complainants, all of full age, to whom his real estate has descended; that letters of administration have been duly granted to Joseph Carey, who, in virtue thereof, has possessed himself of the deceased's personal estate of great value; but complainants " are informed and believe that the same is not sufficient to discharge all the debts due and owing by the said Levin Carey, at the time of his death," and are advised that any deficiency in said personal estate ought to be supplied by a sale of the real estate of their aforesaid debtor. The bill then prays for a sale of the real estate accordingly, and for general relief.

The obligations filed as exhibits with the bill, were written upon paper duly stamped, and the following is a copy of that in favor of Elijah Carey, the one in favor of Thomas H. Carey being precisely the same, except the name of the obligee and the amount, $10,000 instead of $12,000:

" $12,000.00. For value received, I bind myself, my heirs and assigns, & c., to pay or cause to be paid to Elijah Carey, his heirs, & c., & c., the sum of twelve thousand dollars, with interest from the date until paid; as witness my hand and seal, this ninth day of December, eighteen hundred and fifty-three.

LEVIN CAREY, (Seal.)

Testes, --Hillary R. Pitts, 1853, Decm. 9th.

Solomon Carey."

Dennis and wife, and Davis and wife, in their answer, deny that these papers ever were the bills obligatory of said Levin, or were ever obligatory on him, or created any indebtedness on his part to the complainants, or that they were ever either actually or virtually delivered by him to the complainants, or that they ever became obligatory on him in his lifetime, or upon the respondents since his death, or that the real estate which has descended to them is liable to be sold for the payment of the sums of money mentioned therein, or any part thereof. They also deny that the said Levin ever received from the complainants, or either of them, any valuable consideration for the sums of money mentioned in said papers, or any part thereof, and wholly deny that the same, or any part thereof, was a just claim against the said Levin, in his lifetime, or is a just claim against the respondents, or the real estate which has descended to them from the said Levin. They admit that he died intestate as to his real estate, leaving as his children and heirs at law the parties whose names, ages and marriages are correctly stated in the bill, and that Joseph Carey had administered upon the personal estate of the deceased, but they deny that said personal estate is insufficient to discharge all the debts due and owing by the deceased at the time of his death, and also deny that this court has any power or jurisdiction to decree the sale of the real estate so descended to the respondents, for the payment of said pretended claims, or either of them.

Joseph Carey, in his answer, admits the allegations of the bill to be true, and submits to such decree as may be right.

Sophia T. Carey, in her answer, admits that the names, ages and intermarriages of the children and heirs at law of her father, Levin Carey, are truly stated in the bill, and that administration on his personal estate has been granted to Joseph Carey, but says she knows nothing of her father's indebtedness to the complainants, on the bills obligatory mentioned in the bill of complaint, or of any deficiency of his personal assets to pay his debts, and is willing to submit to such decree as may be right.

A general replication to the answers was then filed, and a commission issued, under which testimony was taken.

In such a case, the party in whose hands the bonds were placed, is the mere agent of the obligor, and such agency is revoked by his death, and cannot afterwards be executed, and the subsequent delivery of the bonds to the obligees, is a void act, which vested no right in them as creditors of the obligor.

Solomon Carey, a witness for the complainants, and a brother of the deceased, proved the execution, by Levin Carey, of these obligations in his presence, and that he, deponent, signed his name as a witness thereto, at the request of said Levin; that Doctor Pitts, Joseph and Elijah Carey were present at the time, and deponent thinks that Thomas Carey was also present, but will not say positively. In answer to interrogatories on the part of the complainants, as to whom the said papers were delivered after their execution, and as to what, if any thing, was said by the said Levin Carey in regard to their execution and delivery, and generally in regard to their preparation, and his business as connected therewith, this witness says:

" Said papers were delivered in a package, with a similar one for $12,000 in favor of Joseph Carey, to me after their execution. Said Levin Carey told me that if he died without a will, to deliver them to his three sons, Joseph, Elijah and Thomas. I went there with Doctor Pitts, the Doctor having told me that my brother wanted to see me. After I got there, and after the usual salutations when persons meet, and after having spoken about the blessings of God towards him, he then told the Doctor he wished him to do some writing for him. The Doctor asked him what he wanted him to write. He said he wanted to make some arrangements for his sons; that if he died without some arrangements, they would be defrauded. He then told the Doctor that he wanted him to draw three obligations, one for Joseph for $12,000, one for Elijah for the same, and one for Thomas for $10,000. The Doctor remarked to him that he supposed he wanted him to write his will, and, in order to do so, had brought a book with a form. He then said he had thought about making a will, but he could not do it; that it would be impossible to delineate his lands unless he had them run out and plats made of them. He then called on the boys to bring paper, pen and ink, and the stand was arranged for writing. He then told the Doctor that his sons had gone through a great deal of hardship for him, wet and dry, cold and hot, to Milton, Milford, and so on, with the wagon, day and night, and that they had gone through enough to kill a dog; that they had helped him to make the property, and that he could not die a just man and could not die satisfied without doing something for them; that in dying so they would be defrauded, and forever remain so. The Doctor then tried his pen and proceeded to draw a form. The form was drawn and shown to Mr. Levin Carey, and I looked at it too. He asked me if I thought it was drawn right. I told him I thought it was drawn in the usual way

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