Elder v. Smith

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Emma Elder v. Cherry Elder Smith, Personal Representative of the Estate of Colonel Percy Elder, Sr., No. 34, September Term 2009. ESTATES AND TRUSTS PRIORITY OF LIENS JURISDICTION OF ORPHANS COURT Emma Elder and Colonel Percy Elder were married in 1976, but after twenty-six years of marriage and the birth of two children, they were divorced in the Baltimore City Circuit Court in 2002. Emma was awarded a total of $31,500 as a marital award and was to receive one-half of the proceeds of a sale of property located in Anne Arundel County known as Beales Trail. Emma Elder s $31,500 marital award was not reduced to judgment and remained unsatisfied at the time of Mr. Elder s death. Mr. Elder died on November 8, 2005 in Baltimore County. Subsequently, Emma obtained an order from the Circuit Court for Baltimore City reducing her marital award to a judgment against Colonel Percy Elder. The Circuit Court also issued an Order of Substitution, substituting Cherry Elder Smith, as the Personal Representative of the Estate of Colonel Percy Elder, as the judgment debtor. Emma Elder then recorded the judgment in Anne Arundel County, intending to thereby attach a lien against the Beales Trail property. Prior to the sale of Beales Trail, the Orphans Court ordered Emma to release her lien, reasoning that her monetary award, reduced to judgment and recorded as a lien after Mr. Elder s death, was not entitled to priority within the context of estate administration. The Court of Special Appeals affirmed. The Court of Appeals affirmed, reviewed the legislative history of statutory provisions governing estate administration, as well as the statutory schemes in other states, and determined that a lien cannot be created against a debtor s interest in real property after the debtor s death, because upon death, title to real property passes out of the hands of the decedent, pursuant to Section 1-301(a) of the Estates and Trusts Article. The Court further held, however, that as a court of special and limited jurisdiction, the Orphans Court for Baltimore County was without authority to affect the lien recorded in Anne Arundel County, either directly, or by ordering Emma Elder to release her lien. The Court concluded that although the lien held by Emma Elder on the Beales Trail property is not afforded priority, the release of the lien must be effected in a different manner. IN THE COURT OF APPEALS OF MARYLAND No. 34 September Term, 2009 EMMA ELDER v. CHERRY ELDER SM ITH, Personal Representative of the Estate of Colonel Percy El der, Sr. Bell, C.J. Harrell Battaglia Greene Murphy Adkins Barbera, JJ. Opinion by Battaglia, J. Filed: January 13, 2010 We are asked to consider wheth er a monetary award entered two years prior to the death of a dece dent in connectio n with the d ivision of m arital property upon divorce, though not reduced to judgmen t and record ed as a lien a gainst real esta te until after his death, is afforded priority in the statutory scheme of the Estates and Trusts Article. Emma Elder and Colonel Percy Elder were married in 1976, but after tw enty-six years of marriage and the birth of two children, they were div orced in the Baltimore City Circuit Court in 2002. The next year, Emma was awarded a total of $31,500 as a marital award and was to receive one-half of the proceeds of a sa le of prope rty located at 928 Beales T rail, Pasadena, Marylan d, in An ne Aru ndel C ounty, although the sale ultimately did not occur. Emma Elder s $31,500 marital award was not reduced to judgment and remained unsatisfied at the tim e of M r. Elder s death . Mr. Elder died on November 8, 2005 in Baltimore County, leaving a wife, Theresa, and a child by that marriage. Several months later, on May 1, 2006, Emma attempted to open an estate in Baltimore City, claiming that because she was the estate s largest creditor as a result of the unpaid $31,500 aw ard, she should be ap pointed Personal R epresentative. Cherry Elder Smith, the sister of the decedent, however, having been named as Personal Representative in Mr. Eld er s will, filed a Small Esta te Petition for Administration in the Orphans Court for Baltimore County on May 12, 2006, claiming that the E state s only asset was decedent s one-half interest in Beales Trail. Subsequently, the Orphans Court for Baltimore City dismissed Emma s petition for judicial probate, and estate adm inistration in Baltimore County proceeded. The Orpha ns Court for Baltimo re County subsequently approved a contract for the sale of the Beales Trail property for $86,000. Although settlement was scheduled to take place in 2007, the sale was never consummated, for reasons described in a Memorandum Opinion and Order issued by the Orphans Court, after the Personal Representative had asked for g uida nce r egar ding a lien filed by Em ma a gain st the Bea les T rail p rope rty: Counsel for Emma Elder filed a claim against the Estate on May 9, 2006. On May 16, 2006, Emma Elder obtained a Judgment from the Circuit Court for Baltimore City reducing her various marital awards to a judgment against Colonel Percy Elder in the amount of $31,500 ( Judgment ). On September 13, 2006, the Circuit Court for Baltimore City issued an Order of Substitution substituting Cherry Elder Smith, as the Personal Representative of the Estate of Colonel Percy Elder, as the Judgment Debto r in the place of Colonel Percy Elder. On December 29, 2006 , Emma Elder reco rded the Ju dgment in Anne Arunde l County, intend ing to thereby attach a lien against the Be ales Tra il prope rty. In 2007, the Personal Representative and Emma Elder accepted a con tract for s ale o f the Bea les T rail P rope rty. The Orphans Court for Baltimore County approved the contract by Order dated July 7, 20 07. The se ttlement on th e Beales T rail property was scheduled for Nov ember 11 , 2007. At s ettlement, the Personal Representative anticipated d istribution of o ne-half of the n et procee ds to Emm a Eld er as the jo int prope rty owner with the second half of the ne t proceeds distributed to M r. Elder s Estate. Prior to settlement, the Personal Representative discovered Emma Elder s lien against the property in the amount of $31,500. The title company handling the settlement indicated that it was bound, without further Co urt Order, to distribute $31,500 to Emma Elder from the Estate s share of the proceeds. Without Mr. Elder s on e-half share of the Be ales Trail proceeds, the Estate w ill be insolven t. The Orphans Court ultimately ordered Emma to release her lien against Beales Trail, thereby 2 enabling the retention of one-half of the proceeds from the sale in the Estate. The Orphans Court emphasized that, [a] marital award does not carry with it a legal interest in another party s property, and therefore, the marital aw ards grante d to Emma Elder in 2003 did not constitute judgments, citing Herget v. Herget, 319 Md. 466, 471, 573 A.2d 798, 800 (1990). Because Emma s m onetary award was reduced to ju dgment and rec orded as a lien after M r. Elder s death, the court reasoned, it was not entitled to priority within the context of estate administration. The Court of Special A ppeals aff irmed in a repor ted opin ion, Elder v. Sm ith, 183 Md. App. 647, 962 A.2d 1069 (2008), holding that the statutory scheme embodied in the Estates and Trusts Article governing creditors claims, does not p ermit a cred itor with a pre -death claim to enhance the priority of its claim after the debtor dies, relying, in part, on a finding that a majority of states adhere to the rule that the priority of claims against a deced ent s estate is determined as of the date of death. Id. at 652-54, 962 A.2d at 1072-73. Emma Elder then petitioned this Court for certiorari, which we granted, Elder v. Elder Sm ith, 408 Md. 148, 968 A.2d 1064 (2009), to address the following questions, which we have rephrased and reordered:1 1 The Petition for Certiorari included the following questions: I. Whether the enforcement of a lien of a recorded judgment against the real estate of a deceased judgment debtor is exempt from administration by an Orphans Court, or, as the lower courts held, whether that real (contin ued...) 3 I. Whether a monetary award entered again st a decedent during his lifetime, though reduced to judgment and recorded as a lien against rea l property pursu ant to Section 11-402(c) of the Courts and Judicial Proceedings Article, Maryland Code (1974, 2006 Repl. Vol.), after the decedent s death, entitles the claimant to priority under Sections 8-103(d) and 8-114(b) of the Estates and Trusts Article, Maryland Code (1974, 2001 Repl. V ol.)? II. Whether an Orphans Court lacks jurisdictio n to order the release of a lien recorded pursuant to a money judgmen t? We shall hold that a monetary award reduced to a judgment and recorded as a lien against real property after the deced ent s death is not entitled to priority under the statutory scheme 1 (...continued) property becomes property subject to administration by the Orphans Court because the lien was obtained by judgments recorded after the decedent s death? II. Whether the Orphans Court and the Court of Special Appeals erroneously declared an exception from three statutes, absolute in their terms, which exempt from administration by the Orphans Court, the proceeds from sale of real estate upon which a judgment lien has been obtained, viz Courts & Judicial Proceedings Article, Section 11-402(c ), Estates and Trusts Ar ticle Section 8103(d) and Estates and Trusts Article Section 8-114? III. Is the Orphans Court without jurisdiction to adjudica te the manner of distribution of proceeds from sale of real estate which is subject to a judgment lien against decedent s ownership share in the land? IV. Whether the Orph ans Cou rt is without ju risdiction to order Mrs. Elder to release her judgment lien? 4 for estate administration. We shall further hold that an Orphans Court cannot affect a lien recorded against real property either directly or by ordering a creditor to release such a lien. I. Introduction A personal representativ e has the au thority to allow o r disallow a claim filed against an estate. Maryland Code (1974, 2001 Repl. Vol.), Section 8-107 of the Estates and Trusts Article.2 If a claim is allowed, Section 8-105(a) of the Estates and Trusts Article provides the order of priority of payment, with the exception of secured claims: (1) Fees du e to the registe r; (2) Costs and expenses of administration; (3) Funeral expenses as provided in § 8-106 of this subtitle; 2 All references to the Estates and Trusts Article are to Maryland Code (1974, 2001 R epl. Vol.), un less otherw ise noted. Se ction 8-107 of the Esta tes and Tru sts Article states in relevant pa rt: (a) By the personal representative. If a personal representative intends to dis allow, in w hole or in part, a claim that has been presented within the appropriate time and in the form prescribed in § 8-104(b) o r (c) of this sub title, he shall ma il notice to each claimant stating: (1) That the claim has been disallowed in whole or in a stated amount; or (2) That the personal representative will petition the co urt to determine whether a claim should be allowed. (b) Disallowance of claim. If the claim is disallo wed in whole or in a stated amount, th e claimant is forever barred to the extent of the disallowance unless he files a petition for allowance in the court or commences an action against the personal representative or against one or more o f the perso ns to whom proper ty has bee n distrib uted. . . . 5 (4) Compensation of personal representatives as provided in § 7-601 of this article, for legal services as provided in § 7-602 of this article, and commissions of licensed real estate brokers; (5) Family allowance as provided in § 3-201 of this article; (6) Taxes due by the de cedent; (7) Reasonable medical, hospital, and nursing expenses of the last illness of the deceden t; (8) Rent payable by the decedent for not more than three months in arrears; (9) Wages, salaries, or commission for services performed for the deceden t within three months p rior to death o f the deced ent; (10) Old age assistance claims under Article 88A, § 77 of the Code; and (11) All other claims. A secured creditor, nevertheless, may enforce a lien, to the exclusion of other creditors and without the necessity of notice of the claim to the personal representative. Sections 8-1033 3 Section 8-1 03 of the E states and T rusts Article p rovides in p ertinent part: (a) Genera l. Except as otherwise expressly provided by statute with respect to claims of the United States and the State, all claims aga inst an estate o f a deced ent, wheth er due or to become due, absolute or contingent, liquidated or unliquidated, founded on contrac t, tort, or other legal basis, are forever barred against the estate, the personal representative, and the heirs and legatees, unless pres ented wit hin the earlier of the following dates: (1) 6 months after the date of the decedent s death; or (2) 2 months after the personal representative mails or otherwise delivers to the creditor a copy of a no tice . . . . *** (d) Liens not affected. N othing in this section sh all affect or prevent an action or proceeding to enforce a mortgage, pledge, (contin ued...) 6 and 8-1144 of the Estates and Trus ts Article. It is this status to which Emma Elder aspires, having reduced her marital award to judgment and purportedly perfected a lien on the Beales Trail property after the death of her former husband. II. Discussion Emma Elder argues that the plain meaning of three statutory provisions controls the resolution of the present case. The first, Section 11-402(c) of the Courts and Judicial Proceedings A rticle, Maryland Code (197 4, 2006 Repl. V ol.),5 provides: (c) Judgm ent of anoth er court. If indexed and recorded as prescribed by the Maryland Ru les, a mon ey judgment constitutes a lien on the judgment debtor s interest in land located in a county other than the county in which the judgment was origina lly entered . . . . The seco nd, Section 8-103 of the Estates a nd Trusts A rticle states in relev ant part: (a) Genera l. Ex cept as othe rwise exp ressly provided by 3 4 (...continued) judgment or other lien, o r security interest upon property of the estate. Section 8-114 of the Estates and Trusts Article states: (a) Genera l. An execution or a levy shall not issue nor be made against pro perty of the estate under a judgment against a deced ent or a p ersona l represe ntative. (b) Exception. The provisions of this section do not apply to the enforcement of mortgages, pledges, liens, or other secur ity interests upon property in an appropriate proceeding. 5 All statutory refe rences to the Courts an d Judicial Pr oceeding s Article are to Marylan d Cod e (1974 , 2006 R epl. Vo l.), unless otherw ise note d. 7 statute with respe ct to claims of the United States and the State, all claims aga inst an estate o f a deced ent, wheth er due or to become due, absolu te or contingent, liquidated or unliquidated, founded on contract, tort, or other legal basis, are forever barred against the estate, the personal representative, and the heirs and legatees, unless presented within the earlier of the following dates: *** (d) Liens not affected. Nothing in this section shall affect or prevent an action or proceeding to enforce a mortgage, pledge, judgment or other lien, or security interest upon property of the estate. The third, S ection 8-11 4 of the E states and T rusts Article p rovides: (a) Genera l. An execution or levy shall not issue nor be made against property of the estate under a judgm ent against a decedent or a personal representative. (b) Exception. The provisions of this section do not apply to the enforcement of mortgages, pledges, liens, or other secur ity interests upon p roperty in an app ropriate procee ding. Emma asserts that these provisions c learly afford h er claim prio rity, because she properly obtained a lien against the Beales Trail property by recording her judgment in the land records of Anne Arundel County, and subsequently substituted Cherry Elder Smith, the Person al Rep resenta tive, as ju dgme nt debto r. We disagree with the Petitioner s assessment of the plain meaning of the three statutory sections. Plain meaning refers to the ordinary and commonly understood meaning of the words of a statute. Addison v. Lochearn Nursing Home, LLC, 411 Md. 251, 276, 983 A.2d 13 8, 153 (2009), quoting Sears v. G ussin, 350 Md. 552, 562, 714 A.2d 188, 192 (1998). D espite Petitioner s admonitions to [r]ead the statute, read the statute, read the 8 statute, the provisions she relies upon contain no specific language either permitting6 or prohibiting 7 liens secured after death to be enforced to the exc lusion of all other claims. In 6 The C ourt of Specia l Appe als, citing L.S. Te llier, An notation , Rank of Creditor s Claim A gainst De cedent s E state or His Rights in R espect of P roperty of E state as Affected by Reduction of His Claim to Judgment Against Executor or Administrator, or Levy of Attachment or Execution, 121 A.L.R. 656 (1939, Bluebook of Suppl. Dec. 1st. Perm. Vol. 1946, 2d. Perm. Vol. 1958, 3d. Perm. Vol. 1958, 5th Perm. Vol. 197 6, 7th Perm . Vol. 1990), referred to a minority of states that have embraced the notion that a lien recorded against a decedent s interest in real property after the decedent s death is enforceable. Massac husetts ostensib ly appears to b e the only state tha t may permit th e enforcement of such a lien. Mass. Ann. Laws c h. 230, § 6 (L exisNex is 2009); see also H erthel v. M cKim, 77 NE 695, 696 (Mass. 1906); Tracy v. Strassel, 77 NE 700, 701 (Mass. 1906). Other states included in the minority, including Missouri, North Carolina, Pennsylvania, and Virginia in the annotation have since, apparently, enacted statutes a brogat ing that p osition. See, e.g., Mo. Ann. Sta t. § 473.44 0 (West 2 007); N.C . Gen. Stat. § 2 8A-19-6 (2009); 20 Pa. Cons . Stat. Ann. § 3381 (West 2005); V a. Code Ann . § 64.1-187 (2007 ). 7 Some sixteen states, apparently, prohibit the enforcement of a lien recorded after a d ecede nt s dea th. See 20 Pa. Cons. Stat. Ann. § 3381 (West 2005) ( Nothin g in this code shall be construed as impairing any lien or charge on real or personal estate of the decedent which ex isted at his dea th. ); see also Ala. Code § 43-2-15 2 (1991); C al. Probate Code § 9300 (West 1991); Ga. Code An n. § 53-7-91 (1997 ); Ind. Code § 29-1-1 4-16 (2009); Kan. Stat. Ann. § 59-1301 (2005); Mo. Ann. Stat. § 473.440 (West 2007); Neb. Rev. Stat. § 30-2494 (2008); Nev. Rev. Stat. § 147 .210 (2009); N.C . Gen. Stat. § 28A-19 -6 (2009); Okla. Stat. Ann. tit. 58, § 346 (We st 1995); Or. Rev. Stat. § 11 5.070 (2007); Va. Code Ann. § 64.1-187 (2007); Wash. Rev. Code § 11.40.130 (2008); W. Va. Code Ann. § 44-2-28 (Lexis Nexis 2004) ; Wyo. St at. Ann . § 2-7-7 10 (20 09). See Alaska Stat. § 09.35.06 0 (2008); Sheehan v. Estate of Gamberg, 677 P.2d 254, 256 (Alaska 1 984) (relying in part on Section 09.35.060, which provides that execution may be issued on a judgm ent obtained before the debtor s death, in reasoning that a judgment lien cannot be created after the deb tor s death); see also Ariz. Rev. Stat. Ann. § 12-155 1 (2009); Ark. Code Ann. § 16-65-111 (2005); C olo. Rev. S tat. Ann. § 13-58-101 (West 2005); D.C. Code § 15-309 (2001); Idaho Code Ann. § 11-106 (2004); Iowa Code Ann. § 626.88 (W est 1999); Ky. Rev. Sta t. Ann. § 42 6.555 (Le xisNexis 2005); Minn. Stat. Ann. § 548.07 (West 2000); Miss. Code Ann. § 11-33-75 (2004); Mont. Code A nn. § 25-13-103 (2009); N.J. Stat. Ann. § 2A:17-71 (West 2000); N.M . Stat. § 39-1-3 (2006); N.D. Cent. Code § 28-20-06 (2006); Utah Code Ann. § 78B-5-203 (2008) (indicating that a judgm ent obtained after a (contin ued...) 9 the absence o f such, w e turn to legislative history for guidance, but the history of Section 11402(c) of the Courts and Judicial Proceedings Article, and Sections 8-103(d) and 8-114(b) of the Estates and Trusts Article, does not yield much to assist in our analysis. A review of the legislative history of Section 11-402(c) of the Courts and Judicial Proceedings Article indicates that it was first enacted in 1890, when the General Assemb ly added the following language to then Sec tion 19 of A rticle 26, M aryland Cod e (1888): 19. [A]nd a certified copy of the docket entries from the clerk of the court wh ere any judgm ent is obtaine d, or magistra te judgment originally recorded, when recorded upon the judgment record of any other c ourt in the co unties of this State or the c ity of Baltim ore, shall be and constitute a lien, from the date of its being so recorde d, upon the property of the defenda nt in said county or city of Baltim ore, to the same exte nt as in the co unty or city, where the said judgment was originally obtained or magistrates judgment originally recorded. 1890 Maryland Laws, Chapter 3 14. The p rovision w as re-num bered as S ection 20 o f Article 26, Maryland Code (1939), but otherwise remained essentially the same until 1973, when the General Assembly enacted the Courts and Judicial Proceedings Article, repealing and recodifying former Section 20 of Article 26, Maryland Code (1957, 1966 Repl. Vol.) as follows: 7 (...continued) debtor s death may not confer upon the judgment creditor priority by virtue of a lien or other method of exe cution). The Court of Special A ppeals, in ou tlining the ma jority view, also referred to an opinion authored b y the Maryland Attorney G eneral in 1969. See 54 Op. Atty. Gen. 440 (1969) (reasoning that a judgment for unpaid child support obtained after the decedent s death w as not a fforde d priority). 10 (c) If indexed and recorded as prescribed by the Maryland Rules or the Maryland District Rules, a judgment constitutes a lien on the judgment debtor s interest in land located in a county other than the county in which the judgment was originally entered, except a lease from year to year or for a term not more than five years and not ren ewab le. 1973 Maryland Laws , Specia l Sessio n, Chapter 2. In 1989, the General Assembly repealed and re-enacted former Section 11-402(c) of the Courts an d Judicial Pr oceeding s Article (1974, 1984 Repl. Vol.), adding the language of money judgment : (c) If indexed and recorded as prescribed by the Maryland Rules, a money jud gment co nstitutes a lien on the judgment debtor s interest in land located in a county othe r than the co unty in which the judgment was originally entered, except a lease from year to year or for a term not more than five years and not renew able. 1989 Marylan d Law s, Chap ter 114 . At no time in this history was the validity of a lien record ed aga inst real p roperty af ter the de btor s d eath dis cussed . We turn next to the legislative history of Sections 8-103(d) and 8-114(b) of the Estates and Trusts Article. The precursor to Section 8-103 was enacted in 1798 and provided: 5. Executors and administrators shall have full power and authority to commence and prosecute any personal action whatever, at law, or in equity, (as the case may require,) which the testator or intestate might have commenced and prosecuted, except actions of slander, and for injuries or torts done to the person; and they shall also be liable to be sued in any court of law or eq uity, (as the case may require,) in any action (except as afores aid,) which m ight have b een main tained again st the deceased; and they shall be entitled to, or be answerable for costs, in the same manner as the deceased would have been, and they shall be allowed for the same in their accounts, provided the court awarding costs against them shall certify, that there 11 were probable grounds for instituting, prosecuting or defending, the action on which a judgment or decree shall have been given against them. 1798 Maryland Laws, Chapter 101, Subchapter 8, Section 5.8 In 1929, then Section 10 6 of Article 93, Mar yland Code (1924), w as amend ed to permit a lawsuit against an executor or administrator for personal injuries caused by the deceden t, if brought w ithin a specif ied time perio d: 106. Executors and administrators shall have full power to commence and prosecute any personal action whatever, at law or in equity, which the testator or intestate might have commenced and prosecuted, except actions of slander; and they shall be liable to be sued in any court of law or equity, in any action (except fo r slander) w hich migh t have bee n maintain ed against the deceased; and they shall be entitled to and answera ble for costs in the same manner a s the decea sed wou ld have been, and shall be allowed for the same in the ir accounts, if the court awarding costs against them shall certify that there were probable grounds for instituting, prosecuting or defending the action on which a judgment or decree shall have been given against them; provided, however, that any such action for injuries to the person to be maintainable against an executor or administrator must be commenced within six calendar months after the dea th of the testato r or intestate. 1929 Maryland Laws, Chapter 570, Section 2 (emphasis added). In 1937, the Legislature amended former Section 106 of A rticle 93, Maryland Code (1924, 1935 Supp.), authorizing executors and administrators to recover fu neral expe nses of the deceden t under certa in 8 A history of this e arly codif ication is describ ed in G ans, Sources of Maryland Testamentary Law, 18 Trans. Md . State Bar Ass n 193 (1913). 12 circumstances.9 In 1949, Chapters 468 and 508 of the Maryland Laws amended then Section 109 of Article 93, which in 1951 was codified as Section 111 of Article 93. These two amendm ents in the same session created confusion, however, and the General Assembly then enacted Chapter 689 of the Maryland Laws of 1953, clarifying the prior amendments, increasing the cap on recoverab le funeral expenses, and also extending the time period for bringing an action against the executor or administrator for personal injuries caused by the decedent. 10 And in 1966, the General Assembly amended then Section 112 of Article 93, 9 Chapter 1 27 of the M aryland Law s of 1937 provided : 106. Executors and Administrators sh all have fu ll power to commence and prosecute any personal action whatever, at law or in equity, which the testator or in testate might have commenced and prosecuted, except actions of slander, provided, that if the death o f the testator o r intestate shall h ave resulted from the wrong for which any such personal action might have been commenced, then the Executor or Administrator shall be entitled to recover the funeral expenses of said testator or intestate, not to exceed, however, the sum of Three Hundred Dollar s ($300 .00) . . . . 1937 Md. Laws, Chap. 127. 10 Chapter 6 89 of the M aryland Law s of 1953 stated: 111. Executors and Administrators shall have full power to commence and prosecute any personal action whatever, at law or in equity, which the testator or intestate might have commenced and pro secuted , excep t actions of slan der, provided, that if the death of the testator or intestate shall have resulted from the wrong for which any such personal action might have been commenced, then the Executor or Administrator shall be entitled to recover th e funeral e xpenses o f said testator or (contin ued...) 13 Maryland Code (1957, 1964 Repl. Vol.), to extend the time period for filing suit against an executor or administrator for persona l injuries caused by the decedent, in the event the deceased was covered by an existing insurance policy at the time of the occurrence. 1966 Maryland L aws, Ch apter 642, S ection 1; see also G reentree v. F ertitta, 338 Md. 621, 630, 659 A.2d 1325, 1329-30 (1995) (reasoning that a claim against a decedent s estate, covered by an insuran ce policy, is timely if filed within the o rdinary statute of limitations). Obv ious ly, this histo ry doe s not info rm th e cur rent controversy. Further, Sections 8-103(d) and 8-114(b) of the Estates and Trusts Article were developed in the Second Report of the Governor s Commission to Review and Revise th e Testamentary Law of Maryland.11 The Henderson Commission, as it was known, divided the 10 (...continued) intestate, not to exceed, however, the sum of Five Hundred Dollars ($500.00), in addition to any other damage s recovera ble in such actions; and they shall be liable to be sued in any court of law or equity, in any action (except slander) which might have been maintained against the deceased; and they shall be entitled to and answerable for costs in the same manner as the deceased would have been, and shall be allowed for the same in their accou nts, . . . provided, however, that any such action for injuries to the perso n to be maintainable against an executor or administrator must be commenced within six calendar months after the date of the qualification of the executor or admin istrator o f the tes tator or in testate. 1953 M d. Law s, Chap . 689. 11 The Commission was appointed by Governor Tawes in 1965, under the Chairma nship of William L. Henderson, former Chief Judge of the Court of Appeals, pursuant to Joint Resolution No . 23, to revise and recodify the then arch aic statutory (contin ued...) 14 testamentary law into 12 titles, with subtitle 8 prescribing the procedures to be followed in handling creditors claims. Present Section 8-103(d) first appeared as Section 8-103(c) of the proposed legislation: (c) Liens not affected. Nothing in this Section shall affect or prevent any action or proceeding to enforce any mortgage, pledge , lien, or se curity inter est upo n prop erty of the estate. This language was altered by the addition of the wo rd judgm ent 12 in the 1969 enactmen t: (b) Liens no t affected . Nothing in this Section shall affect or prevent any action or proceeding to enforce any mortgage, pledge, judgment or other lien, or security interest upon property of the e state. 1969 Maryland Laws, Chapter 3. The provision was codified as Section 8-103(b) of Article 93, Maryland Code (1957, 1969 Repl. Vol.), and was later re-codified as Section 8-103(e) of the Estates and Trusts Article (1974) by Chapter 11 of the Laws of 1974. The Section was eventually renumbered, without revision, as present Section 8-103(d) by Section 1 of Chapter 11 (...continued) framework, in order to remove confusion concerning the location and intent of many sections of thes e laws a s well a s duplic ations a nd con flicts . . . . Second Report of Governor s Commission to Review and Revise the Testamentary Law of Maryland, Letter of Transmittal (1968). See Shale D . Stiller & Roge r D. Re dden, Statutory Reform in the Administration of Estates of M aryland D ecedents, M inors and Incomp etents, 29 Md. L. Rev. 85 (1969), for a discussion of the work of the Henderson Commission. 12 The legislative history of former Section 8-103(b) indicates that the language of judgme nt refers to secure d judgm ents. See Second Report of Governor s Commission to Review and Revise the Testamentary Law of Maryland 123 (1968) (noting that the Section makes it clear that the failure of the secured creditor to file his claim does not impair his right ag ainst the security. ) (emph asis add ed). 15 496 of the Maryland Laws of 1989. Again, the history of the statutory provisions does not suppo rt the prio rity of liens record ed afte r death. Present Section 8-114 of the Esta tes and Tru sts Article originated in the Henderson Commission s proposal which provided: No execution shall issue upon nor shall any levy be made against any property of the estate under an y judgment a gainst a decedent or a personal representative, but the provisio ns of this Section shall not be construed to prevent the enforcement of mortgages, pledges, liens or other security interests upon proper ty in an ap propria te proce eding. This Section was enacted without revision in Chapter 3 of the Maryland Laws of 1969. The provision was then repealed and re-codified by Chapter 11 of the Maryland Laws of 1974 as Section 8-114 of the Estates and Trusts Article, Maryland Code (1974), to provide: (a) Genera l. An execution or a levy shall not issue nor be made against pro perty of the estate under a judgment against a deced ent or a p ersona l represe ntative. (b) Exception. The provisions of this section do not app ly to the enforcement of mortgages, pledges, liens, or other secur ity interests upon property in an appropriate proceeding. The Revisor s Note indicates that the Section was substantively unchanged, but was divided for organizational purpo ses. Again, the absence of relevant mention in the legislative history suggests that the General Assembly did not address whether a pre-death claim, reduced to judgme nt and reco rded as a lien after th e debtor s death, should be afforded priority under the statutory scheme. Cherry Elder Smith, the Personal Representative, rather, asserts that after death, Mr. 16 Elder had no actual interest in Beales Trail, when Emma purportedly created a lien, because real property passes immediately from a deceden t upon dea th, pursuan t to Section 1-301(a) of the Estates a nd Trusts Article.13 It is this argum ent that we find to be dispositiv e in this case. The language of Section 1-301(a) of the Estates and Trusts Article, which also provided fodder for the Court of Special Appeals, provides: (a) In genera l. A ll property of a d ecedent sh all be subject to the estates of deceden ts law, and u pon the pe rson s death shall pass directly to th e perso nal repr esentati ve, who shall hold the legal title for administration and distribution, without any distinction, preference, or priority as between real and personal proper ty. Informative to the status of property of a decede nt upon d eath within the meaning of this provision is a case in which the Ohio Court of Appeals addressed a factual situation on point, when f aced with a statutory scheme that similarly neither expressly permitted nor prohibited the enforcement of a lien recorde d against a d ebtor s interes t in real prope rty after the debtor s death. In Brandon v. Keaton, 630 N .E.2d 1 7 (Oh io Ct. A pp. 199 3), appeal dismissed sua sponte, 626 N.E .2d 690 (O hio 1994), Michael Brandon, Melody Wiley, and William Wiley obtained judgments against Jimmie Keaton, in the amounts of $9,000, $1,000, 13 Section 1-301(a) of the Estates and Trusts Article states: (a) In genera l. A ll property of a decedent shall be subject to the estates of decedents law, and upon the person s death sha ll pass directly to the personal representative, who shall hold the legal title for admin istration and d istribution, without any distinction, preference, or priority as between real and personal proper ty. 17 and $5,000, respectively, on January 5, 1990. Mr. Ke aton died o n June 3, 1 990, and w ithin three days each cre ditor purpo rtedly created a lien against the decedent s real property. The creditors initiated foreclosure proceedings, asserting that liens filed after Mr. Keaton s death entitled them to foreclose. The Ohio court concluded that the liens were invalid, recognizing that upon death, a decedent is no longer the title hold er of rea l prope rty. The court reasoned that no lien is obtained by a certificate of judgment filed after the judg ment deb tor s death because the real property descends to the heirs at the time of death, citing Dressler v. Bowling, 492 N.E.2d 446, 448 (Ohio 1986) ( It is well-settled that n o lien is ob taine d by a certificate of judgm ent filed afte r the judgm ent debtor s death, since his real prop erty descen ds to his heirs at tim e of de ath. ). Id. at 18. Although our Legislature rejected the notion that upon d eath, title passes im mediately to the heirs and legatees of the dec edent, 14 as in Ohio, it is notable that the Henderson 14 Prior to the 1969 revision of the testamentary law in Maryland, title to a decedent s real pro perty pass ed imm ediately to the heirs or devi sees up on his d eath. See Fleming v. Brunner, 224 M d. 97, 10 4, 166 A .2d 901 , 905 (1 961). This rule w as in effect at the time this Court decided McH ugh v. M artin, 198 Md. 173, 81 A.2d 623 (1951), upon which Emma Elder relies. In McHugh, a creditor obtained a judgment in the Circu it Court for Washington County prior to the debtor s death, and the judgment immediately became a lien on the judgment debtor s land lo cated in that cou nty. See former Section 20 of Article 26, Marylan d Cod e (1951 ). We concluded that the creditor cou ld levy against th e land held by the devise es. Id. at 177-78 , 81 A.2d a t 625; see also Polk v. Pendleton, 31 Md. 118, 12223 (1869) ( Where a sole defendant dies after judgment, it may be revived, and execution had against his lands, by suing out a scire facias against the heirs and terre-tenan ts, without proceeding against the personal represen tatives. ) (emphasis in original). Distinctively, the lien attached prior to the decedent s death. Conceivably, had it obtained after death, the rational e in the O hio cas e wou ld apply. 18 Commission, in its draftsmanship, acknowledged that title to real property passes out of the deceden t s hands at d eath: The Commission has rejected the concept . . . that title to all property passes directly to the heirs or legatees, subject to the power or control over the property by the personal representative. The Commission felt that this dichotomy between title, on the one hand, and power, on the other, is unwork ably vague and unnecessarily inconvenient. On the contrary, the Commission recommends the suggested wording of Section 1-301 in order to make it clear that the title to all prop erty, both real and personal, and as to both testate and intestate estates, shall pass directly to the personal represe ntative. Second Report of Governor s Commission to Review and Revise the Testamentary Law of Maryland, 13 (1968). The underlying principle, then, is that up on death, title to real prope rty passes out of the hands of the decedent. This conclusion holds true even when, as here, the Person al Rep resenta tive is su bstituted as the ju dgme nt debto r. We conclude that the judgment obtained and recorded as a lien aga inst Beales T rail after Mr. Elder s death based upon a marital aw ard against h im two years prior to his death, is not afforded priority under the statutory scheme embodied in the Estates and Trus ts Article, because title to real property passes out of a decedent s hands after death. We turn now to the second question, namely, whether the Orphans Court in Baltimore County cou ld act to affe ct the lien recorded in Anne Arundel County, either dire ctly, or by ordering Emma Elder to release any and all liens against the Beales Trail property. Emma Elder asserts that the Orphans Court of Baltimore County, as a court of 19 special and limited jurisdiction, was without jurisdiction to fa shion an order in the na ture of an injunction requiring her to release her lien. Cherry Elder Smith, as Personal Representative, counters that orphans co urts p osse ss broad auth ority to admin ister deced ents est ates gen erally. Orphans courts are not courts of general jurisdiction, but rather, h ave special and limited powers as proscribed by Section 2-102(a) of the Estates and Trusts Article: (a) Powers. The court m ay conduct judicial probate, direct the conduct of a personal representative, and pass orders which may be required in the course of the administration of an estate of a dece dent. It m ay summ on witn esses. The court may not, under pretext of incidental power or constructive authority, exercis e any juris diction n ot expr essly con ferred. While an orphans court has the ability to effectuate the administration of an estate, Kaouris v. Kaouris , 324 Md. 687, 695, 598 A.2d 1193, 1196 (1991), citing Clarke v. Clarke, 291 Md. 289, 293, 435 A.2d 415, 417 (1981), the orphans court is without jurisdiction to consider questions of tit le to r eal p rope rty. 15 Talbot Packing Corp. v. Wheatley, 172 Md. 365, 370-71, 190 A. 833, 834-35 (1937) (reasoning that the Orph ans Cou rt for Talbo t County was without jurisdiction to order the administrator of the d ecedent s estate to relinquish the dec edent s 15 The Personal Representative cites Goldman v. Walker, 260 Md. 222, 271 A.2d 639 (1970), fo r the propo sition that orph ans courts h ave had ju risdiction since 1970 to determine decedents interests in real property. Although it is true that prior to the 1969 revision, real property was n ot subje ct to esta te adm inistratio n, Goldman involved an action by a wife in th e Circuit Court for Montgomery County to set aside a decree of divorce issued by a Nevad a court, during the pen dency of which , the hus band d ied. Id. at 223, 271 A.2d at 640. The fact that the issue was whether the land in Goldman passed by way of surv ivorship does n ot affe ct our an alysis rega rding th e ability of an orph ans co urt to rele ase a lien . 20 leasehold interest in a farm co operative upon pe tition by the farm corporation). As courts of original and general jurisd iction, Section 1-501 of the Courts and Judicial Proceedings Article, M aryland Cod e (1974, 20 06 Rep l. Vol.), circuit co urts, such as the Circuit Court for Baltimore City in the present case, have the authority to enter judgm ents upon which lien s are based and to order their release . See Section 11-402 of the Courts and Judicial Proceed ings Article; see also Rules 2 -626 an d 2-64 3. It is clear, then, that the Orph ans C ourt do es not. The Personal Representative s reliance on Kroll v. Fisher, 182 Md. App. 55, 957 A.2d 205 (2008 ), in this re gard is in appos ite. In Kroll, the nephew of the decedent filed a complaint in the Circuit Court for Allegany County, seeking an independent accounting or audit of the decedent s estate, alleging that the perso nal represen tative had en gaged in malfea sance. Id. at 58, 957 A.2d at 206. The Circuit Court dismissed the complaint, because jurisdiction pro perly was in the Orphans Court, a ruling which was affirmed by the Court of Special Appeals, reasoning that alleged misconduct by a personal representative was within the pro vince o f the orp hans c ourt. Id. at 62, 957 A .2d at 209. A uthority to address alleged misconduct by a personal representative is not analogous to authority to affect land, however. As a result, althou gh the lien h eld by Emma Elder on th e Beales T rail property is not afforded priority under the Estates and Trusts Article, the release of the lien must be effected 21 in a different manne r. JUDGMENT OF THE COURT OF SPECIAL APPEALS AFFIRMED. COSTS IN THIS COURT AND IN THE COURT OF SPECIAL APPEALS TO BE PAID BY PETITIONER. 22