Brooks v. Bergner

Briscoe, J., delivered the opinion of the Court. On the first day of April, 1895, Stephen L. Brooks, one of the executors of John D. Brooks, late of Baltimore City, deceased, sold to the appellee, Frederick L. Bergner, certain leasehold property, situate in Baltimore City, under the following power in the will of his testator : “I hereby authorize my executors and trustees, if it becomes necessary at any time during the existence of the trusts aforesaid, to sell, lease or mortgage any of the property of said estate, in order to pay debts or charges upon my estate, and I further authorize them to make changes or investments of said property or estate, or do whatever they may deem advantageous to the interests of said estate.” On the 14th day of May of the same year, an order was obtained from the Orphans’ Court of Baltimore City, authorizing Stephen L. and Michael S. Brooks, the two executors named in the will, to sell at private sale, the same property, and on the 21st of May they reported to the Court, “That in pursuance of the powers and authority in said will contained, these executors and trustees have sold at private sale unto Frederick Bergner, Junior, at and for the price or sum of five thousand .dollars cash, all that lot of ground and premises situate, lying and being in Baltimore City ” and fully described in their report of sale. Exceptions were subsequently filed by the purchaser, Bergner, and from the order sustaining these exceptions and vacating the sale, this appeal is taken. It is admitted that the sale was made without a previous order of the Orphans’ Court, and the only question, then, it becomes necessary for us to consider, is whether these executors were authorized by the power of sale contained in this will to make sale of the leasehold property, without application to the Orphans’ Court and an order of that Court being first had and obtained, directing them so to do.

There can be no doubt that prior to the Act of 1843, chap ³⁵⁴ ter 304, now constituting sec. 276 of Art. 93 of the Code, an executor could sell the property of his decedent without the previous authority of the Orphans’ Court granting his letters. In the case of Allender v. Riston, 2 G. & J. 86 , the rule was recognized that if there be no collusion the bare act of sale of the assets by the executor is sufficient indemnity to the purchaser. But by sec. 276 of Art.