Davis v. Clabaugh

Stewabt, J., delivered the opinion of the Court. The testator, John Clabaugh, by his will, in controversy in this case, appointed "William H. Clabaugh, the appellee, his executor, and ordered and directed him to sell and dis ⁵¹⁰ pose of the real and the residue of his personal estate;; and after making some other provisions, not affecting this enquiry, he bequeathed the residue of his estate after his wife’s death, to his seven children, share and share alike, or equally to be distributed amongst them. Hanson T. Clabáugh, one of the children having died before any distribution, the appellant, Joseph Davis, administered on his estate. ¥ml H. Clabaugh, the appellee, accepted the trust, and letters testamentary were duly granted to him, as the executor of the will of John Clabaugh; but according to the allegations of the bill of complaint, refuses and neglects to execute the trust, and to distribute the proceeds of the estate, or to account to the appellant concerning the money devised to Hanson T. Clabaugh. By the will, the real estate of John Clabaugh, directed to be sold, was converted, in equity, into personalty, (Hurtt vs. Fisher, 1 H. & G., 96 ,) and Hanson T. Clabaugh, as one of his children and legatees, had a vested interest therein; and the right to recover and' collect the same, after his death, devolved upon the appellant, as his administrator.

The appellee, William H. Clabaugh, executor and trustee, under the will, by Code, Article 93, section 280, could sell, and convey the real estate devised to be sold, and account therefor to the Orphans’ Court of Carroll county, where his letters testamentary were obtained. But if he refused or neglected to discharge the trust, as is alleged in the bill and admitted by the pleadings, the Code, Article 16, section 66, makes provision for such refusal or neglect, and authorizes a Court of Equity, upon the petition of any person interested, in the sale of such property, to appoint a trustee to sell and convey the same, and apply the proceeds to the purposes intended. Independently of this section of the Code, which specially provides for the appointment of another trustee in case of death, neglect, or refusal of the party appointed by the will, there is no doubt of the powers of a Court of Chancery, in the ⁵¹¹ exercise of its general jurisdiction in cases