Weinstein v. Boyd

• Decision Date: 16 March 1920
• Docket Number: 30.
• Parties: WEINSTEIN v. BOYD.
• Court: Maryland Court of Appeals

110 A. 506

136 Md. 227

WEINSTEIN v. BOYD.

No. 30.

Court of Appeals of Maryland

March 16, 1920

Appeal from the Orphans' Court of Baltimore City.

"To be officially reported."

Proceeding by Nathaniel S. Weinstein against J. Cookman Boyd, executor of Sarah E. Boyd, deceased. From an adverse order the former appeals. Affirmed.

Argued before BOYD, C.J., and THOMAS, URNER, STOCKBRIDGE, and ADKINS, JJ.

Frank G. Turner, of Baltimore, for appellant.

Charles F. Harley, of Baltimore (Thomas E. Mason, of Baltimore, on the brief), for appellee.

ADKINS J.

Mrs Sarah E. Boyd, by her will dated April, 1904, appointed her son J. Cookman Boyd executor, and authorized and empowered said executor "without the permission, aid or intervention of any court whatsoever, to sell, mortgage, or otherwise dispose of any of my property aforesaid, and to invest the proceeds from the sale of same, as to him shall seem right and proper for the best interest of my estate."

The will could not be found after the death of Mrs. Boyd, who died on April 19, 1917, but about two years later a copy thereof was admitted to probate by the orphans' court of Baltimore city. After sundry specific bequests, all the rest and residue of testatrix's estate was given to J. Cookman Boyd in trust to collect and pay the income to her daughters Lida B. Benedict and Anna B. Boyd for life, and on the death of either of them to pay the whole income to the survivor for life; after the death of the survivor the estate to become the property of her sons Henry E. Boyd and J. Cookman Boyd absolutely. Included in the inventory of said estate is a leasehold lot of ground in the city of Baltimore at the corner of Collington avenue and Lombard street, subject to a ground rent of $56, and appraised at $2,200.

On April 9, 1919, prior to the probate of the will, J. Cookman Boyd, "individually and as agent for" his brothers and sisters, undertook to sell to the appellant said leasehold lot of ground, and in such capacity signed with appellant the following agreement:

J. Cookman Boyd, individually and as agent for Henry E. Boyd Marion M. Boyd, Lida B. Benedict and Anna B. Davy, being all the children, heirs at law, and distributees of the estate of Sarah E. Boyd, do hereby bargain and sell unto Nathaniel S Weinstein, the property situate at the N.W. cor. of Collington avenue and Lombard street, subject to the ground rent of fifty-six dollars ($56.00) at and for the sum of twenty-four hundred dollars ($2,400.00) of which sum two hundred dollars ($200.00) has been paid on account.

And the said Nathaniel S. Weinstein hereby purchases from the said J. Cookman Boyd, individually and as agent, aforesaid, the said property, at and for the sum of twenty-four hundred dollars ($2,400.00). And it is agreed and understood that the said sale is to be consummated within forty-five days from the date hereof, except that if by reason of the absence from the city of Marion M. Boyd, it be impossible to obtain his signature to said deed within said forty-five days, then the purchase price of said property shall be deposited in escrow in the National Bank of Baltimore, awaiting the signature of the said Marion M. Boyd, and the said Nathaniel S. Weinstein shall be permitted to take possession of said property as fully and to all intents as though said deed were executed.

All expenses to be adjusted to day of transfer within said forty-five days, or at and to the time of handing over the custody and control of said property.

As witness the signatures of the parties hereto, this ninth day of April, 1919. [Signed] J. Cookman Boyd, Individually and as Agent Aforesaid. [Signed] Nathaniel S. Weinstein. Test: Emil Budnitz.

Subsequently as alleged in his petition hereinafter referred to in examining the title appellant discovered that no administration had been granted on Mrs. Boyd's estate, and called Boyd's attention to the fact, whereupon he, on May 10, 1919, filed a copy of the will, which was on May 26th admitted to probate. On June 16, 1919, an inventory of the estate was filed, and on the same day a report of sale by the executor and consent to immediate ratification were filed, and the sale finally ratified by the court. On July 10, 1919, appellant filed a petition, setting out the above facts, reciting the residuary clause in the will, and the clause appointing the executor, and empowering him to sell the property; and calling attention to the fact that there was no written consent and agreement of parties in interest filed in court to the immediate ratification of the sale, except that of the purchaser; and alleging that the order of immediate ratification was improperly and improvidently passed by the court, and consequently the title was not good and merchantable. The prayer of the petition is that the executor be required to immediately procure the written consent and agreement of the parties in interest to the ratification of sale or to cause an order nisi to be published as required by law, and upon failure to do so that he be removed. In his answer the executor says he filed the report of sale at the request of the petitioner; that it is now impossible for him to procure the written agreement and consent of the parties in interest; and that the said parties refuse to consent to the ratification of said sale. On September 11, 1919, the court rescinded its order of ratification passed on June 16th.

On September 15th the executor filed a petition, alleging that the report of sale was filed by him in pursuance of the agreement of April 9, 1919, entered into by him individually and as agent of the distributees of the estate of Sarah E Boyd, and under the belief that the same would meet with the approval of the said distributees; that the provision in said agreement for the payment of the purchase money in 45 days was not complied with; that petitioner, prior to the time of the signing of said agreement and prior to the agreement of sale itself, had received a higher offer for said property, and so informed appellant; that he having agreed to give appellant a certain time in which to buy the same, he felt morally bound to adhere thereto, and refused said higher offer; that after the expiration of the time limited in said agreement of sale, petitioner was...