83 Md. 98 | Md. | 1896
delivered the opinion of the Court.
' Under a power in the will of Samuel Warehime, the appellants, executors, offered at public sale certain real estate, containing one hundred and fifty-eight acres, situate in Carroll County; and on the fifteenth day of August reported to the Orphans’ Court that they had sold the same to John L. Graf at $35.75 per acre. The Court passed an order confirming the sale, unless cause to the contrary Was shown before the ninth day of September. On the third, John L. Graf filed his petition, alleging that he was the purchaser of the property; not at the sum named in the report, but upon' a bid of $31.75 án acre ; and prayed the Court not to confirm the sale as reported, but to confirm it to him as the purchaser, at the price of his bid. Testimony was taken, and after a hearing, the Court ordered the sale to be set aside, and directed the executors to resell the property. From this order the executors have appealed. /
The appellee moved to dismiss the proceedings in this Court upon two grounds, first, because the executors are not entitled to appeal;, and second, because other persons, without showing a legal interest in the matter, not parties to the proceedings in the Orphans’ Court, have joined in the appeal. It is doubtless true, that a trustee to sell appointed by the Court, cannot appeal from an order of the tribunal which appointed him ; for the reason, that having no interest in the property, or in the proceeds of the sale, he is merely the officer and the hand of the Court. Lurman v. Fowler, 75 Md. 273. But this is not that case. Here the executors were appointed by the testator, and by the terms of the appointment, are charged with the duty, not only of selling the property, but also of seeing to it, that the proceeds of the sale shall be so applied as to carry out the purposes of the testator. Fait of the money arising from the sale is to remain in their, hands in permanent trust, and the residue they are to distribute to persons whom the testator particularly names. In the discharge of their trust
In reference to the second ground, it is only necessary to say that the interest of the other parties to the appeal fully appears in the record; and if they considered themselves aggrieved by the order of the Court, they had full right to appear in the case by the leave of the Court and prosecute their appeal.
We come now to consider the case upon its merits. The appellee contended in his brief and in argument, that the sale reported is within the fourth section of the Statute of Frauds, and for that reason cannot be enforced, there being no written contract. But we cannot support this contention. It is settled in Maryland that judicial sales are not within the statute, and we are of the opinion, that sales made by executors ought to be regarded under our statutes as judicial sales. By the 282d section of Article 93 of the Code, “ in all cases ” where an executor may be authorized and directed to sell the real estate of the testator, the executor is required to account to the Orphans’ Court, and the sale is not valid unless ratified and confirmed by that Court, after notice by publication as practised in Courts of Equity. His bond is made answerable for the proceeds of sale, and the Court may allow him a commission of not less than two nor more than ten per cent. In case the purchaser has transferred his purchase to another person, the Court may substitute the assignee for the original purchaser, provided it can be done without injury to the estate, and may direct the executor to convey accordingly. By the 283d section, if the executor named in the will decline or
It appears from the evidence that the property was first, offered in separate parcels. It was then put up as an entirety. The auctioneer knocked it down at $31.75 to John L. Graf; but a certain Frederick E. Graf claimed the bid.. The auctioneer immediately reported the dispute to the executors and asked for directions. The executors ordered him to put it up again. Whereupon be announced in a loud tone that “ there was a dispute between the bids and the property would be resold by order of the executors.” In other words, the executors refused to accept the bid, and
Order reversed and cause remanded.