4 Md. 522 | Md. | 1853
delivered the opinion of this court.
A decree for the sale of the real estate of Isaac Maddox, for the payment of his debts, was passed by Charles county court, as a court of equity, in November 1830. A sale was made and reported by James Brawner, the trustee, and an order of ratification nisi was passed in November 1831, the report stating that the purchaser had complied with the terms of sale, by executing his bond with sureties named in the report. At this time, also, the case was referred to the auditor for an account.
Nothing further appears to have been done in the case, until September 1842, when the appellees, heirs at law of' Maddox, who were minors when the decree passed, filed their petition praying that the proceeds of sale might be brought into court by the trustee. An order nisi was passed for this purpose, of which the trustee had notice, but he does not appear ever to have answered, or shown cause against the petition, though he subsequently participated in taking proof, before the auditor, in relation to claims against Maddox, which he sought to have allowed out of the proceeds of sale. Three accounts, A, B, C, were stated by the auditor of Charles county court, in the last of which claims to a large amount were allowed, absorbing nearly the whole purchase money. After this the case was removed to the high court of chancery, and subsequently certified to his Hon. Judge Brewer for decision.
On the 4th March 1846, the auditor in chancery reported another account, from which he excluded all the claims except the complainants, on the ground that they were not proved, and were subject to the plea of limitations, which had been filed against them. In this account the proceeds of sale, after
On the 17th July 1846, the heirs at law, by petition, suggested. the death of James Brawner, the trustee, and prayed that the appellant, his executor, might be made a party, and that relief might be had against him. The appellant in his answer denied that he had any part of the trust fund, and, also, insisted that M.addox died insolvent, and that the proceeds of sale had been applied in payment of his debts. He also filed exceptions to the auditor’s account, of March 1846, in accordance with the averments in his answer. At the hearing the exceptions were overruled, and the account ratified. But as there was no allegation or proof of assets of James Brawner in the hands of his executor, the appellees were allowed to amend their petition, for the purpose of having the estate of Brawner administered in the chancery court. The appellant answered accounting for the assets that had come to his hands, and, also, showing that, under the will of his testator, he had sold certain real estate, and that the sale had been ratified by the orphans court of Charles county. But he denied the jurisdiction of the court to charge him in this form of proceeding, at the instance of the heirs at law, and contended that the proceeds of sale of the real estate of his testator, could not be applied to the payment of their claims, as personal assets in his hands. An order was passed 8th February 1850, requiring the appellant to account with the appellees in respect to the personal estate of James Brawner, and also for the proceeds of sale of his land, and that the creditors of Brawner be notified to file their claims. In the account subsequently stated the claims of the appellees, predicated upon the auditor’s account of March 1846, were allowed against the estate of James Brawner; and the executor has appealed from so much of the order ratifying that account, as relates to these claims and to claim No. 11.
The case appears to be one of those which courts of equity are sometimes called upon to decide, where, from irregularity of proceedings, neglect or remissness of trustees, and. lapse
The decree contained no direction to the trustee to bring the proceeds of sale into court. It “appointed him trustee for carrying the decree into effect.” But we do not think, as contended by the appellant’s counsel, that this can be construed into an authority to disburse the trust funds. Trustees sometimes pay away the proceeds of sale, without bringing the money into court, after an audit has been made and ratified, bat certainly they have no such power before the fund has been distributed by such account and ratification. Mackubin vs. Brown, 1 Bland, 410. If they do pay, it must be at their own risk, and they can be in no better condition than the creditors whom they may have paid. The case before us illustrates that no such power should be recognized.
There is, to be sure, no- direct proof that the trustee received the proceeds of sale, but we think that there cannot be a reasonable doubt on this point. At any rate, under the circumstances of this case he must be presumed to have collected the money, or to have lost it to the estate by his neglect. It is to be remarked, that the trustee did not, nor did the appellant, deny that it was received. The effort on the part of the trustee and his executor has been to show, not that he did not receive the money and why he could not have done so, but that it had been properly disbursed in paying off Maddox’s debts. In his report he states, that the purchaser had given bond with sureties, according to the terms of the decree. If the parties had become insolvent or for any cause the purchase money could not have been collected, he should have shown it. As it was his duty to have collected the proceeds of sale or shown why he did not, he must be dealt with as if it had come to his hands. 1 Bland, 416.
The case of Reigart and Stevenson, vs. Stevenson, in this court, not reported, is relied upon to show that the court below had no jurisdiction in this case. There was no opinion filed — nothing to show whether the court meant to apply that decision beyond the case before them, which we suppose
The third, fowrth and fifth points of the appellant relate to the will of James Brawner and the effect of the act of 1831r ch. 315. It cannot be denied, that his creditors were entitled to have his land sold for payment of debts, if, as is apparent from the record, the personal estate was inadequate for that purpose, even if his will had contained no authority to-the appellant to sell the realty. The will does create a trust, but it at the same time authorizes the executor to sell the land as he may deem best for the benefit of those interested in the estate. It is quite consistent with the intention of the testator, that the appellant, as executor, should sell the land under the act of 1831, and after closing the estate hold the balance for the trusts of the will. The tenth and eleventh sections of the act, we think, authorised this sale. It applies to all cases where executors are authorized and directed-to sell real estates. Its object was to save the expense and delay incident to chancery proceedings. The proceeds of-such sales are to be accounted for in the orphans courts in-the same manner as the sales of personal estates, and the
The widow is to be considered as a purchaser for value, and entitled to an investment for life. But of what? Surely not of the whole proceeds of the real estate to the prejudice of creditors, but only of so much as might remain after the settlement of the estate. It does not appear that she renounced the will. If, standing by the will, she has permitted the land to be sold by the executor, we do not perceive that she has any cause of complaint if she obtains all that, the testator could rightfully devise to her. And if she claim as widow and not as devisee, the auditor’s report shows that the balance in the executor’s hands, after paying debts, is more than she would be entitled to in lieu of dower, and consequently she is not injured by the decree.
Whether the widow, heirs and devisees should have been made parties depends on the character of the proceeds of sale —whether realty or personalty. If the sale was rightfully made, as we suppose it was, according to the act of Assembly, the executor represented all parties in interest as fully as he would in any case involving the personal estate of a deceased person.
For the reasons assigned, we thing that claims Nos. ], 2, 3, 4, 5, 6, 7, were properly allowed. But -we do not take this view of claim No. 11. The court below treats this as having been fully established by the adduction of a judgment against the appellant, as executor. If this were the fact we should, without hesitation, agree in allowing the claim. But we find no such evidence in the record, except a copy of the
Cause remanded.