Smith v. Montgomery

Fowler, J., delivered the opinion of the Court. This appeal presents but one question, namely, whether the Act of 1872, chapter 451, now codified as section 78 of Article 21 of the Code, requires the executor of a nonresident testator to report a sale of real estate lying in Maryland to the Orphans’ Court where the land lies, and to obtain its ratification of the sale. The section referred to is a long one, but we think its meaning is very clear. It provides that all deeds duly acknowledged and recorded, made my executors of wills of non-resident testators, executed to pass real estate, and proved according to law, conveying land in this State, shall be as valid and effectual in every respect “as if [140] made by executors under last will and testament, duly executed, proved, and recorded in the office of the register of wills in this State, for lands lying therein, and whose sales of real estate, under the authority of said will, were duly made and reported to and ratified by an Orphans’ Court in this State; provided, that an authenticated copy of the said last will and testament shall have been filed and recorded in the office of the register of wills of the county where the land lies ; and provided, further, that full authority was given by said last will and testament to the executors to sell and convey said real estate.” We do not think there is any thing in this section which justifies the appellants’ position — for it is apparent that the words ‘ ‘whose sales of real estate under the 'authority of said will were duly reported to and ratified by an Orphans’ Court in this State,” refer to sales of land made by domestic executors. And the meaning of this section of the Code is that, when foreign executors are fully authorized by will to sell land in this State, and they record an authenticated copy of the will in the office of the register of wills where the land lies, their deeds conveying such land shall be as valid and effectual as deeds made by domestic executors in pursuance of the provisions of the statute, (Code, Art. 93, section 282,) which requires domestic executors to report their sales of land for ratification to the Orphans’ Court where they obtained letters. Nor do the appellants themselves appear to base a contrary construction of this section so much upon the language therein used as upon what was said by the late Judge Bkent, in delivering the opinion of this Court in the case of Norment, et al., Ex’rs vs. Brydon, 44 Md., 112. It is true, in that case the foreign executor reported his sale of land in Garrett County to the Orphans’ Court of that county; but he failed to record an authenticated [141] copy of the will, as required hy law, and it was held that “the failure so to do was fatal to the jurisdiction of the Orphans’ Court.” (Decided 17th December, 1891.) It was not intended hy this or any other language used in that opinion to say that such sales musí he reported for ratification. The question here presented was not passed upon in Norment vs. Brydon, and we all agree that the deed offered hy the appellees to the appellants should have heen accepted hy them. Decree affirmed, costs to be paid by appellees in accordance with agreement of parties.