Moorhead v. Wolff

OPINION, Me. Justice Green : If the Orphans’ Court had jurisdiction to order the sale of the property in question, the judgment of the court below must be sustained. The property was aquired by will; the petitioner is the trustee appointed by the will, with the equitable title to .the entire estate of the testator devised to him. It is alleged in the petition and is undoubtedly the fact that a sale of the particular property described would be to the advantage of the persons interested therein, and the reasons for a private sale are sufficiently set forth in the petition. The more especial purpose of the sale averred in the petition is the necessity of barring or defeating certain contingent remainders. That the * application was made by the proper person and to the right court cannot be questioned. It is alleged in the petition, and is not denied, that the property is entirely unproductive and subjects the estate of the testator to an annual expense of about $450 for taxes and interest upon a mortgage which is a lien upon it. There are certain contingent remainders create°d by the will the mere existence of which would prevent any sale of the property for an adequate price unless they can be defeated by the order of the Orphans’ Court; but, as the sixth section of the act of 1853 provides that the purchase money shall be substituted for the land and protects all interests in the land, these remainders are in no peril, but can be amply secured by orders respecting the purchase money. It appears to us there is ample ground for holding that the Orphans’ Court had jurisdiction to grant the order of sale and carry it into effect; indeed, the case seems to be one which illustrates well the wisdom of the act of 1853. Objection is made on the ground that as the sale is private and the property is subject to the lien of a first mortgage which is not divested by the sale, it renders the title unmarketable. But as the testator’s debts are payable out of [374] bis personalty and tbe rents and profits of bis real estate, and there is no allegation that these are insufficient for that purpose, and the plaintiff avers that lie is ready and willing to pay off the mortgage and have it satisfied of record, we cannot regard this as a sufficient objection. The rights of the defendant can be fully protected after judgment and before execution, by proper orders for the discharge of the mortgage. The same is true as to the judgments against two of the persons having life interests. The court below has ample power to require the removal of these liens, if they are a charge upon the land or the purchase money, before the defendant can be compelled to pay the judgments. Judgment