37 Md. 421 | Md. | 1873
delivered the opinion of the Court.
The petition in this case was dismissed by the Orphans’* Court, as stated in the order, for want of jurisdiction in the premises. No testimony was heard, in reference to the controverted facts; and the only question presented on this appeal is, whether the Orphans’ Court had jurisdiction to hear and determine the subject-matter of the petition, assuming the facts to be true, as therein stated.
The power of the Orphans’ Court over the subject-matter is derived from section 280 of Article 93 of the Code, as slightly modified and extended by the Act of 1865, chapter 51. By the statute, the executor, in the cases contemplated, is bound to account to the Orphans’ Court for the proceeds of the sale of the real estate sold by him, in the same manner as for the proceeds of sale of the personal estate, and his bo'nd is declared to be answerable for such proceeds of the real estate “to the same extent as if it were personal estate in his handsand it is also provided that such sale of real estate “ shall not be valid or effectual, unless ratified and confirmed by the Orphans’ Court,” after notice given in the manner practised in cases of sales of land, under decrees in equity. In this case, though the sale as reported was finally ratified, no deed has yet been made to the purchaser.
The great object in conferring this power of ratification upon the Orphans’ Court, was, doubtless, the protection
It seems to have been supposed that ,as there is no express authority to be found in the statute, the rescinding of the order of ratification would be the exercise of constructive authority which the Court is forbidden to exer
Whether the order of ratification should he disturbed, will, of course, depend upon the evidence tfiat may he produced by the petitioners, as it will be incumbent upon them to establish the facts stated, in order to entitle them to have the order vacated or opened for an amendment of their report.
Order reversed ■ and cause remanded.