Hoffman v. Hoffman

Stone, J., delivered the opinion of the Court. The hill in this case was filed by the executors of Louisa A. Hoffman, for the specific performance of an agreement that they allege they made with William Grilmor Hoffman, Jr., for the sale of a lot of ground in Baltimore City. The defence set up hv the respondent is that’ the executors having finally settled the estate of their testatrix, and made a final distribution in the Orphans’ Court ⁵⁷² before the agreement to sell, have no power now at least, to sell the real estate of their testatrix, and cannot therefore give the respondent a good title. That by the will, the exercise of the power was limited to the time of the final settlement of the estate, and no longer.

This is the principal defence, and the Only one we deem it necessary to notice. The admitted facts that have any material bearing upon the case are these. That Louisa A. Hoffman at the time of her death, had á perfect title to the lot in controversy. That some of the real estate left by the testatrix has been partitioned in a suit in equity between her devisees, but that said suit did not include said lot, and her executors were not parties to such suit as executors.

That the devisees of one-fourth of the real estate left by said testatrix by a deed, to which said executors, as executors, were not parties, have granted all their interest in said lot to the devisees of the other three-fourths of the real estate. That the executors have passed a final distribution account in the Orphans’ Court. The only question in this case is whether the executors named in said will can noio, under the power contained therein, give a good title to this lot of ground of which their testatrix died seized. Mrs. Louisa A. Hoffman died in 1879, having duly executed her last will with two codicils thereto also properly executed.

The second and last codicil, executed in March, 1879, and under which the complainants claim the power to make this sale, is in these words: “ I hereby authorize the executors named in my last will and testament to sell the whole of, or any part of my real estate, in their discretion, the proceeds of sale or sales to be disposed of by them under the directions of my said last will and testament.” The controlling element in the construction of all wills is the intention of the testator, to be gathered from the ⁵⁷³ whole instrument with the surrounding circumstances. The. first and most important question in this case then is, whether the testatrix did intend that the power that she gave to her executors to sell any or all of her real estate, should extend indefinitely, or during their lives, or that it should he restricted to the period that they were performing the ordinary legal duties of executors in settling up her personal estate. The testatrix, Louisa A. Hoffman, seems to have died seized and possessed of a large estate, both real and personal. . This estate, both real and personal, she devised to her four children, in equal proportions.

To one of them, (Robert,) the devise is as follows: “I give, devise and bequeath to my son, Robert Gr. Hoffman, one-fourth of my estate, real, personal and mixed, to him, his heirs, executors and administrators.” The devise to Charles, another son, is as follows: “ I give, devise and bequeath the remaining fourth of my estate, real, personal and mixed, to my son, Charles Hoffman, to him, his heirs, executors and administrators.” She gives one other fourth to her daughter, Mrs. Riach, and also one-fourth to her daughter-in-law, Mrs. Julia Hoffman. The devises to her daughter and daughter-in-law create some life estates and contingent remainders over, not necessary to construe or refer to except as hereafter mentioned. It will be seen from this brief statement of the contents of the will, that no property was specif catty devised, and that perfect equality among her four children was the aim of the testatrix.

It will readily be seen that to obtain this perfect equality in the shares to her several children, a sale of some of the real estate might be necessary. Her real estate might not have been susceptible of division into four equal parts, without a sale of