Young v. Twigg

Weisbl, J., delivered the opinion of this Court. The questions in this case have been so fully and satis [642] factorily disposed of in the opinion filed by the learned gentleman who decided it below as Special Judge, that we are saved the labor of travelling over the ground covered by the opinion. "We concur with him, for the reasons and upon the authorities adduced, in his construction of the will of James Twigg, in the want of power in his executor to sell the lands specifically devised to the appellee William Twigg ; the want of jurisdiction in the Orphans’ Court of Allegany County to -direct or ratify the sale, by the executor, of said lands, and the consequent failure of title in the purchasers thereof; and in the relief granted by the decree whenever the cause shall. be placed in a condition for a final decree. In examining" the answer of-.Young and his cross bill, we find that he has sufficiently brought to the notice of the Court the equities he would be entitled to, in the event of the failure of his pretensions as a purchaser. He avers in his answer that not only the personal estate of James Twigg was insufficient for the payment of his debts, but the entire residue of the real estate was not adequate to this purpose, and that it became necessary to resort to the land in -controvery. The cross-bill contains a similar averment, and that the consideration paid by him to the executor was applied in the payment of the debts; • In such a state of the case, if made 'satisfactory by proof, the appellant Young had the right to be ¡substituted in equity to the rights of creditors to the ¡¡extent of the application of the purchase money paid by him, to creditors, regard being "had to the portion of ■debts which would properly fall upon the land purchased by him, and specifically devised to William Twigg, upon ?a -proper ascertainment of the same. Young, as well as "his predecessor in the purchase, Daniels, were parties to ithese proceedings and before the Court, and sufficient ■allegations of equities having been made, ‘as already ¡stated) It was competent for the Court to do equity in [643] these proceedings to all the parties. We therefore think that the Court below was premature in granting the relief decreed, and that it was its duty, as a preliminary step to a final decree, to have ordered an account in such form as to have exhibited the precise amount for which Young would he substituted for creditors in reference to the lands purchased by him, to he affected by the relief prayed ; this relief to he finally granted upon his being reimbursed the amount so found, by the devisee William Twigg. We will therefore reverse the decree of the Circuit Court for Allegany County, and remand the cause for further proceedings, and with these instructions: the cause and proceedings therein to be referred to the Auditor of said Circuit Court for Allegany County, directing him to state an account, from proofs in the cause and testimony to he taken and returned by him, of the personal estate of the said James Twigg, the testator, showing the amount and character of his debts at the time of his decease, and their proper distribution from the personalty after the allowance of funeral and other expenses, and executor’s commissions, entitled to priority in the administration. He will also ascertain, by proof, the value of the real estate of said deceased, and show what portion thereof, if any, was selected and occupied by his widow for her dower, distinguishing the value of the lands specifically devised in the third clause of his will to the appellee William Twigg, such valuation to he confined to or about the time of the sale of said land to Young by Hartley, as executor. He will then charge upon said land its due proportion of the debts of said testator remaining after the application of the personalty. The Auditor will also ascertain upon proof, (as matters that may he proper for the future notice of the Court in its action upon the audit,) how much money was paid by Daniels on his purchase, and how the same was applied, and how much by Young with its application. In stating [644] the account, the Auditor is not to treat or regard the accounts in the Orphans’ Court of Allegany County, as conclusive upon the devisee William Twigg, who, as is shown, was an infant during those settlements. They are but prima facie. The said William Twigg, as well as other parties interested, are to have notice of the time and place of stating said account and taking the necessary proof; they will be at liberty to surcharge and falsify, and to adduce competent proof and witnesses on their behalf, and the account is to be so stated as to present a true and faithful administration of the personalty, and of all other -matters to be embraced; the whole to be reported to said Circuit Court for exceptions and ratification after the usual notice under its rules and practice. And after 'ratification, such decree is to be passed as will provide for all the relief granted in the decree appealed from, after reimbursement to Young by William Twigg, of the amount to which he shall be decreed to be justly entitled, by way of substitution to the rights of the creditors of said James Twigg. The costs of this appeal to be paid by the appellee-William Twigg ; the costs in the Court below to abide the final result. (Decided 23d July, 1867.) Decree reversed and cause remanded for further proceedings.