Carey v. Dennis

Bartol, J., delivered the opinion of this court. This cause has been argued with very great ability and care, and several interesting questions iiave been presented for the consideration of this court; but in the view which we have taken of the case, after a most careful examination of the authorities cited, and a mature consideration of the main question involved, we are of opinion that the ruling of the Circuit Court is correct, and that the decree ought to be affirmed. The proceeding was instituted under the act of 1785, ch. 72, sec. 5, which authorizes a Court of Chancery to decree the real estate of a deceased party to be sold for the payment of his debts, in case of an insufficiency of his personal assets. That section provides, “that if any person hath died, or shall hereafter die, without leaving personal estate sufficient to — 16 — discharge the debts by him or her due, and shall leave real estate which descends,” &c., &e., “the chancellor shall have full power and authority, upop application of any creditor of such deceased person, after summoning,” &c., “and hearing as aforesaid, and the justice of the claim of such creditor is fully established, if upon consideration of all circumstances it shall appear to the chancellor to be just and proper that such debts should be paid by a sale of the real estate, to order the whole or part of the real estate so descending or devised to be sold for the payment of the debts due by the deceased.” The provisions of this section were afterwards extended to defendants of full age, by the 2nd section of the act of 1818, ch. 193. To authorize a decree for the sale of lands under these statutes, it is necessary that there be an indebtedness existing in the lifetime of the deceased. By which we mean, not that the alleged debt must be payable in his lifetime, but that the debt must be shown to be existing. In this case the proof shows that the writings obligatory of Levin Carey, the deceased, which are exhibited as the evidence of his debt, were voluntary gifts, and it has been argued on the part of the appellees, that for that reason alone, if there were no other objection, the complainants are not entitled to enforce their payment by a proceeding under the act of 1785. Upon that question, however, we do not mean to express any opinion, as " the case before us does not demand it. It appears from the evidence in the cause that they were not delivered, nor designed to be delivered to the obligees till after the death of Levin Carey; during his lifetime they were Inchoate papers, revocable at his pleasure, not intended by him to constitute any binding obligation upon himself or his estate, or to confer any right upon the obligees, or to have any effect whatever till after his death. If this be so, then they are not evidences of debt, but in the nature of testamentary papers. This principle is abundantly established by the numerous authorities cited by the appellees’counsel, and it is unnecessary for us to refer to them more particularly. In the language of Justice Bulier, “the cases have established that an instruid — 17 — meet in any form, whether a deed poll or indenture, if the obvious purpose is not to take place till after the death of the person making it, shall operate as a will.” Habergham vs. Vincent, 2 Ves., Jr., 231. It has been contended, on the pari of the appellants, that the operation of the instrument as testamentary or otherwise, is a question of intention, and that inasmuch as the evidence shows that Levin Carey, at the time of executing these papers, did not suppose he was making a will, they cannot be held to operate as testamentary, without defeating his intention. This argument was urged in the case of Habergham vs. Vincent, and is conclusively answered by the learned judge in the opinion from which we have just quoted; he says, (page 230,) “But it was argued for the plaintiff that the testator did not intend to make a will when he executed a deed, and therefore it cannot operate as a will. Whether the testator would have called this a deed or a will, is one question; whether it shall operate as a deed or a will, is a distinct question, that is to be governed by the provisions of the instrument. A deed must take place upon its execution, or not at ali. It is not, necessary for a deed to convey an immediate interest in possession, but it must take place as passing that interest to be conveyed at its execution; but. a will is quite the reverse; it, can, only operate after death.” The rule, as thus expressed by Justice Buller, and as deducible from the authorities, we understand to be, that where an instrument does not operate inter vims, but, is made to depend for its whole operation tjpon the event of the death of the maker to consummate if, then it can only take effect as iesta¡meutary. In our opinion, this does not in any manner conflict with the principles announced by the late Court of Appeals, in Hannon vs. Robey, 6 Gill, 465, and 9 Gill, 440; nor with the decision of this court in The Mayor & City Council of Baltimore vs. Williams, 6 Md. Rep., 235. In those cases the instruments under consideration were indentures, executed and recorded in ¡he lifetime of the grantor, which were held to operate as deeds, not as testamentary papers, — 18 — In our opinion, the case before us is wholly unlike those; here, as we have said, the proof establishes that these writings obligatory were executed by Levin Carey for the sole purpose of making provision for his sons, the obligees, to take effect after his death. But whatever may have been the real intention of Levin Carey, it is clear that to vest any interest in the obligees, or, in other words, to create debitum in presentí, a delivery of the bills obligatory to the obligees in his lifetime, or to some one for their use, was necessary. Delivery is essential to the validity of every deed. This 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 case there is a present interest vested, the delivery being regarded in law as if made to the party himself; upon that principle the case of Waring's Admr. vs. Edmonds, 11 Md. Rep., 424, was decided. But the facts of this case do not bring it within that principle; here the writings obligatory were delivered to Solomon Carey, to be held by him, not as the agent or trustee for the obligees, but as the agent or custodian for Levin Carey, who, so far from parting with his dominion and control over them, expressly reserved the power to revoke them at will. Under these circumstances, the delivery of the papers to Solomon Carey could no more vest an interest in the obligees during Levin Carey’s lifetime, than if they had remained in his own possession; for the possession of Solomon Carey, as his agent, was his possession. Nor could the delivery of them by Solomon Carey, after the death of Levin, give effect to them as binding obligations of the deceased. If we are correct in saying that Solomon Carey, in whose custody the papers were placed, was the mere agent of the deceased, and we think that is the plain conclusion from the evidence, then it is clear, upon principle and authority, that such agency was revoked by the death of Levin Carey, and could not afterwards be executed. • In such a case the doctrine of relation does not apply. It has been held in many cases, and is doubtless the law, that where a deed is delivered as an escrow to a third person, to be — 19 — delivered to the grantee upon the performance by him of a certain condition, and it be afterwards delivered to the party upon the performance of the condition, such second delivery may, by a fiction, relate back, and the deed fake effect from the first delivery, and this has been held even where the grantor has died in the intervening time, or, being a feme sole, becomes covert; upon the principle ut res magis valeat, &c. But in this case there is no pretence that the bilis obligatory were delivered as escrows, or that the obligees named therein could entitle themselves to their possession by the performance of any condition, or by any other act on their part. During the lifetime of Levin Carey, they remained subject to his control, and liable to be revoked by his own act. They created no debt in his lifetime, and the delivery to the obligees, after his death, was a void act, which vested no right in them as creditors. The case of Wheelright vs. Wheelright, 2 Mass., 447, involved questions analogous to those wo are considering, and tlie counsel for the appellants have relied upon it as conclusive of this case. Prom the distinguished learning of the judge who delivered the opinion in that case, and of the court which decided it, its authority is entitled to very great respect; it has been followed in several of the decisions in other States, which have been cited by the appellants’ counsel. The same questions were also discussed with great ability and decided by the Supreme Court of Georgia, in the case of Wellborn vs. Weaver, 17 Georgia, 287, which was not cited in the argument, but to which the attention of the court has since been called. In. this last case the ruling of the Supreme Court of Massachusetts, in Wheelright vs. Wheelright, is examined with much ability, and its correctness questioned. Without adopting all the conclusions announced in Wellborn vs. Weaver, we think that much of the reasoning upon which that case was decided is sound, and it lias had great weight in the determination of the question before us. ¡ This case is, however, different in several important, features from both of those; here the papers are not deeds of indenture registered in the lifetime of the grantor, or delivered as escrotos; — 20 — they are writings obligatory, voluntary gifts, revocable at his pleasure, placed in the hands of an agent of the obligor, not to be delivered, and, in point of fact, not delivered to the complainants till after his death, and we are of opinion that they cannot be enforced tinder the act of 1785, as debts due by Levin Carey, or have any operation except as testamentary papers. (Decided January 27th, 1859.) Decree affirmed, without costs.