Waxter v. Mindel, 198

• Decision Date: 13 June 1952
• Docket Number: No. 198,198
• Citation: 89 A.2d 599,200 Md. 367
• Parties: WAXTER v. MINDEL.
• Court: Maryland Court of Appeals

Page 367

200 Md. 367

89 A.2d 599

WAXTER v. MINDEL.

No. 198.

Court of Appeals of Maryland.

June 13, 1952.

Alexander Stark, Asst. City Sol., Baltimore (Thomas N. Biddison, City Sol. and Lloyd G. McAllister, Asst. City Sol., Baltimore, on the brief), for appellant.

Jacob D. Hornstein, Baltimore (Harry D. Kaufman, Baltimore, on the brief), for appellee.

Before MARBURY, C. J., and DELAPLAINE, COLLINS, HENDERSON and MARKELL, JJ.

COLLINS, Judge.

This is an appeal from an order sustaining exceptions to the sale of real estate under a creditor's bill.

One Clara LeBon, residing at and being the owner of property at 3711 Clipper Road in Baltimore City, was the recipient of Old Age Assistance from the Department of Public Welfare for the period from January, 1936, to October, 1947. From the last mentioned date until her death on June 10, 1949, she was maintained at Spring Grove State Hospital as a charge upon the Department of Public Welfare of Baltimore City. At the time of her death the Department of Public Welfare of Baltimore City claimed that there was due it by Clara LeBon during her lifetime the sum of $4,149.36, which was the amount of money they claimed was advanced in her behalf, less certain recoveries from her life insurance policies. At the time of her death, Miss LeBon was the owner in fee simple of the property at 3711 Clipper Road.

On September 29, 1950, the appellant filed in the Circuit Court No. 2 of Baltimore City a creditor's bill in which he recited that there was owing to him as above set forth the sum of $4,149.36. That the said Clara LeBon died on June 10, 1949, leaving no personal estate. Her heirs at law were named with their addresses. He further alleged that the said Clara LeBon at the time of her death was the owner in fee simple of the property at 3711 Clipper Road, Baltimore, and that she did not leave any personal property to pay debts contracted during her lifetime. This property had been deeded to Clara LeBon and Laura LeBon as joint tenants and Laura LeBon predeceased Clara. He asked that the aforementioned property be sold for the payment of the aforementioned debt and for any other indebtedness owed by her, for the appointment of a trustee to make said sale, and for other and general relief.

After all the defendants were returned summoned, and not having answered, a decree pro confesso was obtained on March 2nd, 1951, referring the case to an examiner to take testimony. After the taking of testimony before the examiner a decree was signed by the chancellor ordering, among other things, the sale of the real estate of the decedent for the payment of her debts, the insufficiency of her personal estate having been proven. The decree assumed further jurisdiction over the further administration of the estate and provided for the filing of the bond by the trustee therein appointed. The chancellor also ordered the trustee to 'give notice to all persons having claims against the Estate of Clara LeBon, deceased, to file their claims, properly authenticated, with the Clerk of the Circuit Court No. 2 of Baltimore City, on or before the 20th day of September, 1951, by causing a copy of this order to be publlished in some daily newspaper in the City of Baltimore, once a week for three successive weeks, before the 13th day of August, 1951.' A certificate was filed showing the publication of this notice as ordered.

A report was filed by the trustee on August 29, 1951, reporting the sale of the property mentioned in the proceedings to Meyer Mindel, appellee here, for the sum of $4,025. Before the sale was ratified the purchaser, Mr. Mindel, filed exceptions to the sale on the grounds that the court was without jurisdiction to pass the decree directing the sale; that all of the parties in interest have not been named in the proceeding; that the testimony taken is hearsay and cannot be used as a basis for legal determination and decree; and for other reasons to be shown at the hearing. No testimony was taken at the hearing on the exceptions. The chancellor sustained the exceptions on the ground that 'no notice to creditors of Clara LeBon, deceased, has been given as provided by Section 117 of Article 93 of the Code'. From the order sustaining the exceptions to the sale and ordering the trustee to reimburse the appellee the deposit paid, the appellant appeals.

Code, Article 93, Section 117, provides as follows:

'Whenever any person, resident or non-resident of the State of Maryland, shall have been dead less than twelve (12) years, testate or intestate, leaving one or more parcels of real estate in this State, but not leaving personal estate therein as far as may be known, it shall be lawful for the Orphans' Court of the county or city in which such real estate, or any part or parcel thereof, may be situate, to grant letters testamentary or of administration on the estate of such decedent, and the Court may direct notice to be given by publication to all resident or non-resident creditors of such decedent to file in said Court their claims against said decedent, which notice shall be substantially as provided in Section 116 of this Article, and the provisions of Sections 118 to 122, inclusive, of this Article shall apply. No purchaser of such real estate shall be required to accept title thereto unless such notice has been given as is authorized by this Section and until the period for the filing of such claims has expired; and no claim not filed within the period specified by such notice to creditors shall thereafter be asserted against such real estate in the hands of a purchaser for value. The bond required upon the grant of letters shall be in such penalty as the Court may prescribe. In case any such real estate is sold by a Court of Chancery on a bill of sale for the purpose of partition, the said Court may, in its decree for sale, provide for a notice to creditors not exceeding ninety days, which notice shall be in lieu of the notice above required, and upon the giving of this notice by the trustee appointed by the Court and upon the expiration of the ninety days provided for by the notice to creditors aforesaid, the purchaser of such real estate shall be required to accept title thereto, and no claim not filed within the period specified by such notice shall thereafter be asserted against such real estate in the hands of the purchaser at such sale, or his heirs or assigns. This section shall not apply to any real estate where any owner of the same shall have been dead for twelve (12) years or more.'

This section of the article was first enacted as Chapter 146 of the Acts of 1912. By Chapter 591 of the Acts of 1924 the provisions relating to partition suits were added. By Chapter 288 of the Acts of 1939, it was made inapplicable when the deceased has been dead for 12 years or more. Article 93, Section 116, provides for the six months notice to be given in the Orphans' Court to creditors of a decedent.

The learned chancellor relied on the cases of Van Bibber v. Reese, 71 Md. 608, 18 A. 892, 6 L.R.A. 332, and Seaman v. Seaman, 141 Md. 1, 118 A. 120. In the case of Seaman v. Seaman, supra, it was said 141 Md. at pages 5 and 6, 118 A. at page 121: 'At the time Van Bibber v. Reese, supra, was decided, administration could only be granted in this state in cases where the decedent died intestate leaving personal property in this state. Where he left real but no personal property there could be no administration (Grimes v. Talbert, 14 Md. , 172), and therefore no forum in which claims against the estate could be filed or prosecuted except in a proceeding brought in a court of equity to subject the land to the payment of the debts of the decedent. But in the absence of such a proceeding there was always in such cases the possibility that claims might be filed against the estate. It was to obviate the loss and inconvenience incident to that condition of doubt and uncertainty, and which are pointed out by Judge McSherry in Van Bibber v. Reese, supra, that chapter 146 of the Acts of 1912 was enacted. The purpose of that act was not to affect the law relating to the granting of letters of administration in cases in which administration could, as the law then existed, be granted, but to allow such letters to be granted in cases not within the scope of any existing statutes. It complemented, but it did not repeal or amend, section 14, act. 93, C.P.G.L. of Md., for while section 14 provided for the grant of letters of administration only in cases where the intestate left a 'personal estate,' section 109A provided for the grant of such letters where he left land, but no personal estate. Where, therefore, the decedent leaves real and personal property or personal property in this state, letters of administration may be granted under section 14, article 93, Id., and where he leaves real estate only, such letters may be granted under the provisions of section 109A.'

Code, Article 16, Section 242, under which the creditor's bill in this case was brought, provides as follows:

'Where any person dies, or shall have died, leaving any real estate in possession, remainder or reversion, and not leaving personal estate sufficient to pay his debts and costs of administration, the court, on any suit instituted by any of his creditors, or by the executor, administrator or other personal representative of said decedent, may decree that all the real estate of such person, or so much thereof as may be necessary, shall be sold to pay his debts; and the funeral expenses of the decedent, to be allowed in the discretion of the court according to the condition and circumstances of the deceased, not to exceed three hundred dollars, except by special order of court, and provided the estate of the deceased be solvent, shall be considered the debt of said decedent, and in the distribution of the proceeds arising from any sale under this section, the claim for funeral expenses shall take priority to all claims of...