Macgill v. Hyatt

Citations

• 80 Md. 253
• 30 A. 710
• 1894 Md. LEXIS 129

Syllabus

<p>Creditors' Bill — Estates of Decedents — Mortgage Creditor — Jurisdiction of the Orphans' Court. .</p> <p>A creditors’ bill to subject the real estate of a. decedent to the payment of a mortgage debt must allege that the personal estate of the decedent is insufficient for the payment of his,debts. •</p> <p>Where a creditors’ bill is filed for the sale of a deceased debtor’s real and personal estate, the general rule is that the personal representatives of such debtor must be made parties.</p> <p>A creditor of a decedent is not entitled to maintain a bill in equity to administer the deceased’s estate, because the whole of it, both real and personal, belongs to his children, when there is ilo allegation of the insufficiency of the personal estate, and in the absence of any attempt to invoke the aid of the Orphans’ Court.</p> <p>The estates of deceased persons should ordinarily be administered and finally distributed in the Orphans’ Courts.</p> <p>Plaintiff, the mortgagee of a deceased debtor, the mortgage being overdue, was in possession of the property. The executor of the mortgagor died without having made any return to the Orphans’ Court, and no administrator c. t. a. was appointed. Plaintiff, without foreclosing the mortgage or taking any steps in the Orphans’ Court, filed a general creditors’ bill against the sureties of the deceased executor and the children of the deceased mortgagor praying for an account of the whole estate and the application of the same to the payment of all debts. Held, upon demurrer, that the bill should be dismissed.</p> <p>In such case, the plaintiff should have proceeded in the Orphans’ Court to have an administrator d. b. n. c. t. a. appointed, who could have obtained and distributed the estate of the-deceased mortgagor without the aid of a Court of Equity, or, if the personal estate proved insufficient, the plaintiff should have sold the mortgaged property and claimed from the general estate only for the deficiency.</p> <p>A mortga