Birckner v. Tilch

Collins, J., delivered the opinion of the Court. Richard Stein, by his last will and testament dated February 1st, 1933, devised the rest and residue of his estate both real and personal, and mixed, to certain devisees named therein, to them and their heirs and assigns, forever, share and share alike, as tenants in common, and included among the devisees Robert Tilch individually and also Rudolph F. Adler, executor and trustee for the children of Bernard and Edith Tilch until said children reached their majority, and nominated, constituted, and appointed his nephew, Rudolph F. Adler, his executor. On December 9th, 1935, he executed a codicil to the aforesaid last will and testament reciting the death of Rudolph F. Adler and nominating and appointing Robert Tilch as executor aforesaid in place of the said Rudolph F. Adler, with all powers and authority as though he had been originally named as executor. On the 9th day of November, 1936, the said Richard Stein, unmarried, as party of the first part, executed an agreement under seal with Charles W. Collins, as party of the second part, which contained in part the following: “Witnesseth, that in consideration of the payment of the sum of One Hundred ($100.00) Dollars by the party of the second party to the party of the first part, the receipt ³¹⁶ of which is hereby acknowledged, the said party of the first part does hereby agree to sell the hereinafter described property to the party of the second part who hereby agrees to purchase the same within thirty days after the d'eath of the said party of the first part on the following terms, stipulations and conditions hereinafter set-forth, the said property being described as follows.” The property described is a tract of la,nd consisting of 9.45 acres together with a right of way twelve feet in width in Prince George’s County, Maryland.

The agreement further provided:' “The said party of the second part agrees to pay to the executor or administrator of the estate of the party of the first part the sum of Nine Thousand (S9000.00) Dollars in cash within thirty days after the demise of said party of the .first part, and the executor or administrator of the estate of the said Richard Stein is hereby authorized and directed to execute and deliver to the said Charles W. Collins, his heirs and assigns, a special warranty deed conveying the said real estate to the said party of the second part upon the payment of the aforesaid sum of money, provided, however, that should the said party of the second part his heirs and assigns fail, refuse or neglect to pay’ the said sum of money within the time prescribed above then, and in that event, the right to do so shall automatically cease and determine at the option of the executor of the estate of the party of the first part upon the expiration of said thirty day period, without any formal notice being given by the executor or administrator. “It is further understood and agreed by and between the parties hereto that the party of the first part is to occupy, possess and enjoy the said property during his lifetime without interference by the purchaser; that he will pay the necessary State and County taxes to become due upon said property up to the time of his death. Title to the said property is to be a good marketable title, otherwise, the party of the second part is to be refunded the deposit paid hereunder.” ³¹⁷ The agreement also contained the usual provision binding the heirs, executors, administrators and assigns of the parties thereto. The said Richard Stein departed this life on or about October 26th, 1937, being seised of the tract of land and two dwelling houses thereon, described in the aforesaid agreement, which passed under the rest and residue clause of his will aforesaid. On November 12th, 1937, Robert Tilch as exécutor under the last will of Richard Stein, as party of the first part, entered into an agreement under seal with the said Charles W. Collins, as party of the second part, which provided in part as follows: “Whereas, on the 9th day of November, 1936, the decedent Richard Stein, and Charles W. Collins, entered into a written agreement for the sale and purchase of 9.45 acres of land, located in Piscataway District, Prince George’s County, Maryland, (particularly described in the said agreement by metes and bounds, courses and distances), in which agreement the said Charles W. Collins agreed with the said decedent to purchase said tract of land within thirty (30) days after the death of the said Richard Stein, at and for the sum of Nine Thousand (§9000.00) Dollars, which money was to be paid in cash to the decedent’s executor; and, “Whereas, the said Richard Stein departed this life on or about the 26th day of October, 1937, testate, having duly appointed the said Robert Tilch, executor under his last Will and Testament, the same having been confirmed by the Orphans’ Court of Prince George’s County, on November 2nd, 1937; and, “Whereas, the said Charles W. Collins has paid to the said Robert Tilch, executor under the Will of Richard Stein, the sum of Four Hundred Fifty ($450.00) Dollars.

In consideration of the payment of the said sum of money, the said Robert Tilch, executor under the Will of Richard Stein, does hereby extend the option to purchase said property until October 27th, 1938, upon the same terms and conditions as contained in said original contract, dated November 9th, 1936. ³¹⁸ “It is also understood and agreed by and between the parties hereto that the said party of the second part is to pay to Eleanor Dennison the sum of Six ($6.00) Dollars per month during the period of this agreement, or so long as she is permitted to remain in the dwelling house, located on said property, by the said executor. Should she cease to reside in said house and to look after the same, or should she remove therefrom, then, and in that event, the said payments shall cease and determine. The party of the second part is to pay all the State and County taxes due upon said property for the year 1938, and any insurance premiums becoming due for fire insurance covering said dwelling house; the said agreement dated November 9th, 1936, between the said parties otherwise to remain in full force and effect, and the purpose of this instrument is merely intended to postpone until October 27th, 1938, settlement under the terms of said agreement.” On December 5th, 1939, Robert Tilch as an individual together with some of the other devisees under the aforesaid rest and residue clause of the will of Richard Stein filed a bill of complaint against the remaining devisees under the residue clause of said will and against Robert Tilch, executor and trustee, and against Charles W. Collins, defendants, some of these defendants being residents of Germany. In said bill of complaint were recited the provisions of the aforesaid will, the execution of the agreement by Richard Stein with Charles W. Collins on November 9th, 1936, and filed said will and said agreement as exhibits, and further recited that on the 12th day of November, 1937, Robert Tilch, executor of Richard Stein, entered into the aforesaid agreement with Charles W. Collins extending the option to purchase the aforesaid land and premises until October 27th, 1938, upon the same terms and conditions as contained in the original agreement and filed said agreement as an exhibit.

The bill of complaint further alleged as paragraph four: “That the said Charles W. Collins has failed, neglected and refused to comply with the terms of the aforesaid ³¹⁹ agreements and declines to exercise either of the options mentioned herein and the sole and only purpose of making the said Charles W. Collins a defendant in these proceedings is to preclude and bar him from making any future claims in connection with the subject matter of this suit, in so far as the aforesaid options are concerned.” The bill further alleged as paragraph six: “That the said real estate is not susceptible of partition in kind without material loss and injury to the parties entitled to interest therein, as above stated, and that, in order to make division of the said interests, it will be necessary that said real estate be sold and the proceeds divided among the parties according to their respective interests.” The bill prayed that a decree be passed for the sale of said real estate, that the proceeds of said sale be distributed among the parties according to their respective interests and also asked for general relief. This bill was later amended by adding to paragraph four the following words: “That Robert Tilch, executor, duly notified Charles W. Collins that his rights under said contracts were terminated.” An amended answer was filed by one of the defendants, Alma F. Birckner, who had a one-twentieth undivided interest in this property, which recited that the property was subject to a written contract with Charles W. Collins upon which contract a valid and existing right of action may be instituted and successfully prosecuted; that the sale sought in the bill of complaint is neither necessary nor beneficial to the best interest of the heirs concerned; that there is no authority in the will authorizing or contemplating the sale sought in the action; that the devise in the will is defined, modified and qualified by the contract of sale made between the testator and Charles W. Collins and under the terms of which the executor is legally bound and required to enforce the said contract of sale; that the said land is properly regarded as personalty and is not a proper subject for order of sale in this case; that the proposed sale will result in a loss of approximately three thousand ($3000) dollars ³²⁰ to the parties concerned and thereby reduce her share in said land. The amended answer asked the court to dismiss the cause of action and also asked for general relief. An answer was filed by Charles W. Collins which contained the following statement :• “Further answering said bill of complaint this defendant says that the original option which he acquired from the said decedent, Richard Stein, as well as the extension thereof, which is mentioned in paragraphs 5, have both expired, and he has no desire nor intention to claim any rights thereunder.” None of the other defendants answered, but by testimony and exhibits, it is evident that some of them desired the sale as prayed in the bill of complaint.

After taking testimony, the chancellor passed a decree appointing Adrian P. Fisher, the solicitor for the complainants in the bill, trustee, and after filing bond, to sell the tract of 9.45 acres with the usual provisions, and to bring the money into court to be distributed under the direction of the court. From this decree the appeal is taken by Alma F.