Venable v. Mercantile Trust & Deposit Co.

Briscoe, J., delivered the opinion of the Court. This is an amicable suit for the purpose of obtaining a construction of Art. 93, sec. 283, of the Code of Public General Laws, and to ascertain whether, under the powers of the will of a certain Eliza C. Gill, the admin [190] istrator cum testamento annexo, lias authority to sell her real estate. The facts are admitted on hill and answer, and are these: Eliza 0. fKll of Baltimore City departed this life sometime in the year 1890, leaving a last will and testament, in which among other things, she disposes of the residue of her estate in the following manner: “It is my will that all the rest, residue and remainder of my estate, real, personal and mixed, shall be divided by mj"- executor hereafter named, into three equal parts or shares. And lastly, I constitute and appoint Louis 0. Eischer to be sole executor of this my last will and testament, with full power to sell the same or any part thereof, for the purpose of paying said legacies or dividing and settling my estate, and to convey,” &c. Louis C. Fischer, the executor named in the will, declined to serve, and the Orphans’ Court appointed the appellee administrator c. t. a. of the estate. The appellee, under the powers of the will, sold some of the property mentioned in its residuary clause to the appellant, who has since declined, to comply with the contract of sale, upon the want of authority in the administrator to make the sale. And this appeal is from a decree directing the specific performance of the contract of purchase and sale. The only question, therefore, is as to the construction of the power and authority given the executor hy the will of the testatrix, to sell her real estate, and the application of sec. 283 of Art. 93 of the Code thereto. This section is as follows: In all cases m which a testator, by will, has directed his real estate to be sold for the payment of debts, or for any other purpose, and the executor or executors therein named shall refuse or decline to act, or shall die without executing the powers vested in him or them, it shall and may be lawful for the several Orphans’ Courts of this State, upon petition of any party interested, to appoint an administrator de bonis non, with the will annexed,- or to empower the adminis [191] trator with the will annexed, previously appointed, to execute the trusts of said will in the same manner and to the same extent as the executor or executors appointed hy will could or might do. We think it is manifest from a reading of this Act, that the administrator o. t. a. in this case had power to make said sale, if the power of sale was conferred hy the language of the will of the testatrix upon the executor. This Act was before this Court for consideration in the' cases of Keplinger vs. Maccubbin, 58 Md., 212, and Wilcoxon, Adm’r vs. Reese, 63 Md., 546, and while the facts of those cases are somewhat different from this case, yet it was held, that the design of the Legislature in conferring this jurisdiction upon the Orphans’ Court was to save in ordinary cases, the expense and delay incident to chancery proceedings, and that it met and covered a case where an executor shall refuse or decline to act. But it is contended on the part of the appellant, that the power conferred upon the executor was not mandatory hut discretionary, and that even if said power was mandatory it was ancillary to the duty or trust imposed on said executor to divide the rest and residue of the estate, and that said trust and duty has not passed to the appellee, nor has said power. To this contention we cannot assent. The language of the will is plain and unambiguous: “It is my will that all the rest, residue and remainder of my estate, real, personal and mixed, shall he divided hy my executor hereafter named,” and the power is here given for the purpose of paying legacies or dividing and settling her estate. The power to sell conferred by this will is mandatory, especially as the facts of the case show, that the property was not* susceptible of partition, and it was necessary to sell in order to make a division. The will therefore directing and authorizing a sale by the executor in this case comes within the statute, which authorizes the administrator c. t. a. “to execute the [192] trusts of a will in the same manner and to the same extent as thé executor appointed by will could or might do." The statute means that the administrator c. t. a. succeeds to the power of sale, wherever a testator has not directed only, but where he authorized and directed a sale of real estate for the settlement of the estate. The intention of the Legislature was to confer upon the administrator c. t. a. all the power and authority to sell, which the original executor derived from the will. Any other construction would force the parties to chancery proceedings which the object of the Act was intended to prevent. Dent vs. Maddox, et al., 4 Md., 530. We are therefore of opinion that the appellee, as administrator c. t. a. of Eliza C. Grill, has, under the will and by virtue of the provisions of the statute, power and authority to sell and convey any and all of the real estate left by said testatrix, for the purpose of paying legacies or dividing and settling her estate. (Decided 9th April, 1891.) The decree will be affirmed, the costs in this Court to be paid out of the said estate. Decree affirmed.