Norment v. Brydon

Brent, J., delivered the opinion of the Court. This appeal is from an order of the Orphans’ Court of Garrett County, by which the appellants, as executors of Ulysses Ward, late of Washington City, in the District of Columbia, are directed to execute a deed to the appellee, Brydon, conveying to him certain real estate, lying in that county, which belonged to their testator, Ward. As shown by the record before us, the first proceeding, taken in this matter before the Orphans’ Court of Garrett County, is a report under the oath of the appellants, stating that they had sold the real estate in question to Brydon, in pursuance of powers contained in. the last will of Ulysses Ward, late of the District of Columbia. This sale so reported, was finally ratified by that Court on the 28th of October, 1878. The will is not exhibited, nor does it appear that it was ever filed and recorded in the office of the Register of Wills of Garrett County. The next proceeding before the Orphans’ Court, is on the 9th of March, 1875, when Brydon filed his petition, asking that an order may be passed directing the appellants to execute to him a deed. From this petition, it appears, that' the terms of sale had not been complied with by him, but he asserts his readiness and ability then to pay the purchase money with interest, and files an exhibit of the amount due. Upon this petition the Orphans’ Court on the same day passed an order directing the executors to execute a deed, for the laod in question, to Brydon, upon the payment of the purchase money then due, amounting with interest, to the sum of $1043.60. The appellants, among other objections to this order, have interposed the want of jurisdiction in the Orphans’ Court to pass it — first, upon the ground that they never had jurisdiction of the case, because the requirements of the Act of 1872, eh. 451, conferring the jurisdiction, had [116] not been complied with ; and secondly, if they had any jurisdiction over the case, it did not go to the extent of decreeing a specific performance by directing the execution of a deed, hut was limited to the ratification of the sale. The decision of the first objection made to the jurisdiction, will render it unnecessary to consider the second. By Art. 93, sec. 252, of the Code, the Orphans’ Courts of this State, are prohibited from exercising any powers not expressly conferred by law. They are Courts of special limited jurisdiction, and are confined to the letter of their authority. They must exercise the powers conferred upon them .strictly in accordance with the law, and the facts, necessary to clothe them with jurisdiction, must affirmatively appear upon the face of their proceedings. They cannot be left as matters of inference or presumption. The Act of 1872, ch. 451, confers jurisdiction upon the Orphans’ Court over sales of real estate made by the executors of the will of “a non-resident testator,” “provided that an authenticated copy of the said last will and testament shall have been filed and recorded in a register’s office of this State, in the county where the lands lie; and provided further, that full authority was given by the said last will and testament to the executors to sell and convey the said real estate.” The real estate in the case before us was confessedly owned by a non-resident. He died in the District of Columbia, and his will was there admitted' to probate and record. Two things were necessary to confer jurisdiction upon the Orphans’ Court of Garrett County over the sale of land, in that county, owned by this testator in his lifetime. The first was, the filing and recording in the office of the Register of Wills of that county, an authenticated copy of his will, and the second, that the will should [117] give full authority to the executors to sell and convey. Whether such authority is contained in the will it is impossible for us to say, as there is no copy of it in the record. This question however, becomes an . unimportant one, as the failure to file for record an authenticated copy of the will with the Register of Wills, must be fatal to the jurisdiction of the Orphans’ Court. This proceeding .was essential under the Act of Assembly, and is the very foundation of the power of that Court to pass any order or decree in relation to the real estate of the testator. (Decided 2nd March, 1876.) As a consequence, the whole proceedings in this case were coram non judice, and the order appealed from must he reversed. Order reversed.