92 A. 476 | Md. | 1914
Margaret J. Williams, of Washington County, Maryland, died in January, 1910, leaving a last will and testament, which was admitted to probate by the Orphans' Court of said county on the 22nd of July, 1913.
By her said will the testatrix devised her house and lot in Williamsport, Maryland, to her brother, James H. Anderson, for life, and directed that after his death the property should be sold by her executor therein named, M. Emmitt Cullen, and the proceeds divided among her nephew, niece and two daughters therein named, as therein provided.
M. Emmitt Cullen, the executor appointed by the will, died in January, 1911, and the will was not admitted to probate until after the expiration of the life estate of James H. Anderson in 1913, when letters of administration, cum testamento annexo, were granted to Mary E. Conley and John A. *220 Conley, who were, by an order of the Orphans' Court, authorized and directed to sell the property in accordance with the provisions of the will.
After the property was sold, and the sale was reported to the Orphans' Court, Albert O. Murray, the purchaser, filed exceptions to the sale on the ground that the Orphans' Court had no "jurisdiction or power to pass said order" authorizing and directing a sale of the property. The exceptions were answered by the administratrix and administrator, cum testamento annexo, and after a hearing the Orphans' Court passed an order overruling the exceptions and ratifying the sale, from which order the purchaser has appealed.
Section 291 of Article 93 of the Code of 1912 provides:
"In all cases in which a testator, by will, has directed his real estate to be sold for the payment of debts, or for any other purpose, and the executor or executors therein named shall refuse or decline to act, or shall die without executing the powers vested in him or them, it shall and may be lawful for the several Orphans' Courts of this State, upon petition of any party interested, to appoint an administrator de bonis non, with the will annexed, or to empower the administrator with the will annexed, previously appointed, to execute the trusts of said will in the same manner and to the same extent as the executor or executors appointed by the will could or might do."
The theory of the appellant is that as the executor named in the will died before the will was admitted to probate he "never had an opportunity to refuse or decline to act as executor," and that the power of sale given by the will never vested in him, his contention as to the last proposition being that such a power cannot become vested in an executor until the will is admitted to probate, and he has accepted the trust, qualified and received letters testamentary.
This Court has repeatedly held that the purpose which this section of the Code was designed to accomplish was to avoid the cost and delay incident to chancery proceedings, *221
and that the intention of the Legislature was to confer upon the administrator de bonis non, with the will annexed, or the administrator with the will annexed, appointed by the Orphans' Court "all the power and authority to sell which the original executor derived from the will." Keplinger v. Maccubbin,
The provision of the Code does not limit the jurisdiction of the Orphans' Court to cases in which the will has been admitted to probate, and the executor, after having qualified and received letters testamentary, dies without having executed the powers vested in him, and the powers referred to in the statute are not powers acquired by virtue of the probate and his having qualified and received letters testamentary, but the powers derived fromthe will, and whenever these powers become vested in the executor, the Orphans' Court is given jurisdiction upon his refusing or declining to act, or dying without having executed them.
The probate of a will establishes the factum of the will, which then speaks and takes effect from the time of the death *222
of the testator. Buchanan v. Turner,
It is said in 1 Williams on Executors (10 Ed.), 214: "The probate is, however, merely operative as the authenticated evidence, and not as the foundation, of the executor's title; for he derives all his interest from the will itself, and the property of the deceased vests in him from the moment of the testator's death. Hence the probate, when produced, is said to have relation to the time of the testator's death." A similar statement is found in the note in 1 Jarman on Wills (6 Ed.), 37, where it is said: "Probate is, however, operative merely as the authenticated evidence, and not at all as the foundation of the title to the property disposed of by the will. The title passes to the devisee or legatee at the death of the testator, and the probate of the will relates back to that time." In the case of Woolley v. Clark, 5 Barn. Alderson, 744, ABBOTT, C.J., states the rule as follows: "There is a manifest distinction between the case of an administrator and an executor. An administrator derives his title wholly from the ecclesiastical court. He has none until letters of administration are granted, and the property of the deceased vests in him only from the time of the grant. An executor, on the other hand, derives his title from the will itself, and the property vests in him from the moment of the testator's death." This is the principle generally recognized in respect to the title of an executor, and it is the one firmly established in this State. In Winchester v. UnionBank, 2 G. J. 79, CHIEF JUDGE BUCHANAN said that an executor "derives all his interest from the will; and though probate is necessary to the authentication of his right, yet it is the will alone which gives it, and the probate is only the legitimate evidence of his title. He may, therefore, sue, but cannot declare before probate, for he cannot assert his right in Court, as an executor, without producing his *223
letters testamentary." And in the very recent case of Decker v.Fahrenholtz,
Learned counsel for the appellant relies upon the case ofWilcoxen v. Reese, supra, but the ruling of the Court in that case is in entire accord with what we have here said. There the executor died before the testator, and the Court held that the power of sale given by the will never vested in anyone, because as a will speaks only from the death of the testator, there "was in reality no executor of the will." CHIEF JUDGE ALVEY said, however: "Now, if the person named in the will had survived the testator, and become clothed with the power, and then died without executing the same, the case would have been quite different." In the case at bar the executor did survive the testatrix, and was, therefore, clothed with the power conferred by the will, which speaks from the date of her death.
We think the facts of this case bring it clearly within the provision of the section of the Code referred to, which confers upon the Orphans' Court jurisdiction to direct a sale of the property of a testator where the executor dies without having executed the powers of sale vested in him, and we must, therefore, affirm the order from which this appeal was taken.
Order affirmed, with costs to the appellee. *224