Warehime v. Graf

• Decision Date: 25 March 1896
• Citation: 34 A. 364,83 Md. 98
• Parties: WAREHIME ET AL. v. GRAF.
• Court: Maryland Court of Appeals

34 A. 364

83 Md. 98

WAREHIME ET AL. v. GRAF.

Court of Appeals of Maryland

March 25, 1896

Appeal from orphans' court, Carroll county.

A sale of land by Richard Warehime and another, as executors of Samuel Warehime, deceased, being reported by them to the court for ratification, was, on objection of John L. Graf the purchaser, set aside, and the executors and others appeal. Reversed.

Argued before McSHERRY, C.J., and BRYAN, BRISCOE, RUSSUM, FOWLER ROBERTS, PAGE, and BOYD, JJ.

J. A C. Bond, for appellants.

Charles E. Fink, for appellee.

PAGE J.

Under a power in the will of Samuel Warehime, the appellant executors offered at public sale certain real estate, containing about 158 acres, situate in Carroll county, and, on the 15th 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 9th day of September. On the 3d, 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 an 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 sale, he is merely the officer and the hand of the court. Lurman v. Hubner, 75 Md. 273, 23 A. 646. 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. Part 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 under this will, it is therefore their duty to take such steps in this court, as well as in the court below, as will secure and protect the fund so that the purposes of the testator shall be accomplished. If this be so, it should be remitted to them, to appeal to this court from an order which, in their judgment, unjustly prevents them from securing the full value of the property intrusted to their care. Littig's Case, 81 Md. 434, 32 A. 343; Montgomery v. Williamson, 37 Md. 423. 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 practiced 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 2 nor more than 10 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 refuse to act, the orphans' court has power to appoint an administrator with the will annexed, and empower him to execute the trusts in the will to the same extent as the executor could do. And by section 284, where the purchaser fails, neglects, or...