75 Md. 145 | Md. | 1891
delivered the opinion of the Court.
The fourth clause of the will of the testatrix, out of which this controversy arises, is as follows:
“Fourthly. I will, devise, and bequeath my four several ground-rents arising and payable out of the lots on the west side of North Eutaw street as follows, that is to say:
“First. The one at the corner of Eutaw and Biddle streets, to pay my funeral expenses, and a tomb for Captain Hayden and myself.
“Second. The next, or second ground-rent, to be used to buy and put up a tomb for my father and mother Ogle, and James and Elizabeth Hayden.
“Third. The next, or third ground-rent, is to be used for the same purposes as herein in this last clause mentioned, if the other two ground-rents should prove insufficient for the purpose.”
The fourth ground-rent she devises to the building fund of Saint Luke’s Mission of the Protestant Episcopal Church, and about which there is no controversy.
Under this clause, the executors named in the will, sold the reversionary interest of the testatrix in the three lots of ground out of which the rents issued, the total amount of sales being $1900. The sales were reported by them to the Orphans’ Court, to the ratification of which exceptions were filed by the purchasers. The questions arising upon these exceptions are: First,
Being of opinion, then, that the testatrix meant that the reversion or fee, which she owned in these lots should he sold, the question is whether the power to sell was given to the executors. And in regard to this, there cannot he, it seems to us, any difficulty. We take it to he well settled, that where a testator directs that his real estate shall he sold, and the proceeds of sale are to he disbursed or distributed by the executors, the power to sell is an implication of law. This was decided in Magruder vs. Peter, 11 G. & J., 226, and so decided by the Supreme Court in Peter vs. Beverly, 10 Peters, 565; and by Chancellor Kent in Davoue vs. Fanning, 2 Johns.
Eor can we agree with the appellees that the executors ought, much less were they obliged, to file a bill in equity for the purpose of having this will construed, and for the purpose of having the power to sell exercised under the direction of a Court of equity. The Code provides that in all cases where executors are directed by will to sell real estate, they shall report the sale to the Orphans’ Court for ratification, and, in passing upon the question of ratification that Court has the jurisdiction to decide whether the will in question confers upon the executor the power to make the sale. This jurisdiction is not, however, an exclusive jurisdiction, and an executor may, if he thinks best, file a bill in equity and administer his trust in a Court of equity. This, however, he is not obliged to do. For these reasons the exceptions filed to the ratification of the sales made by the executors in this case must be overruled.
Order reversed, and cause remanded.