Lee v. Keech

• Decision Date: 10 June 1926
• Docket Number: 20.
• Citation: 133 A. 835,151 Md. 34
• Parties: LEE v. KEECH ET AL.
• Court: Maryland Court of Appeals

133 A. 835

151 Md. 34

LEE v. KEECH ET AL.

No. 20.

Court of Appeals of Maryland

June 10, 1926

Appeal from the Orphans' Court of Harford County.

"To be officially reported."

Caveat to the will of Mrs. Hattie B. Shanahan, deceased, by Virginia Lee against H. Hobart Keech and another, executors. From an order dismissing the caveat, the caveator appeals. Affirmed.

Argued before BOND, C.J., and URNER, DIGGES, PARKE, and WALSH, JJ.

John L G. Lee, of Baltimore, for appellant.

Benjamin L. Freeny, of Baltimore, and Edwin H. W. Harlan, of Bel Air for appellees.

BOND C.J.

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 §§ 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 103 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 18, 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. (Mass.) 264; Re Langevin, 45 Minn. 429, 47 N.W. 1133; Watson v Alderson, 146 Mo. 333, 48 S.W. 478, 69 Am. St. Rep. 615; Mullins v. Fidelity & Deposit Co., 30 Ky. Law Rep. 1077, 100 S.W. 256; Bloor v. Platt, 78 Ohio St. 46, 84 N.E. 604, 14 Ann. Cas. 332; Seward v. Johnson, 27 R.I. 396, 62 A. 569; Shepard's Estate, 170 Pa. 323, 32 A. 1040; Lockard v. Stephenson, 120 Ala. 641, 24 So. 996, 74 Am. St. Rep. 63; Bank of Tenn. v. Nelson, 3 Head (Tenn.) 634; Re Brown, 47 Hun, 360, 14 N.Y.S. 622. And see review of cases in notes L. R. A. 1918A, 459. Not 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, § 746, states that a judgment creditor of the heir may contest the will of the ancestor; Page on Wills, § 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, 127 A. 862. 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. Not 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 right 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 interest gained in the property as will give the creditor a part of the sum total rights of ownership. Johnston v. Willis, supra. That this is the general requirement, we understand most, at least, of the authorities cited to agree.

Assuming that a judgment creditor may be said, strictly, to have a lien on the interest of an heir in real property which, in a voidable will, is devised to another (cf. Luhrs v Hancock, 181 U.S. 567, 573, 21 S.Ct. 726, 45 L.Ed. 1005), it is a general, statutory lien on the property of his debtor, consisting of the right to have any part of that property he may select, or all of it, sold for the payment of the judgment. And this right follows real property into the hands of any subsequent owner. "It gives the judgment creditor no right to the land nor any estate in it." Ahern v. White, 39 Md. 409; Davidson v. Myers, 24 Md. 538, 555. "Such lien secures the creditor neither jus in rem nor jus ad rem." Dyson v. Simmons, 48 Md. 207, 215; Eschbach v. Pitts, 6 Md. 71, 77; Knell v. Green St. Bldg. Assoc., 34 Md. 67. "A judgment lien on land," says 2 Freeman, Judgments, § 915, "constitutes no property or right in the land itself. It confers only a right to levy on the same." 1 Black on Judgments, § 400. It has no effect on prior, undisclosed equities, for the judgment creditor is neither in fact nor in law a bona fide purchaser. Ahern v. White, supra; Dyson v. Simmons, supra. Except for the passage of the Act 1904, c. 535, embodied in Code, art. 16, § 152, the judgment...