In re the Estate of Dorney

Stone, J., delivered the opinion of the Court. Thomas Dorney was found upon inquisition, a lunatic in the year 1851. His sister Catherine C. Dorney, was appointed his committee and continued to act as such until December, 1881, when she died, and in January, 1882, Jacob S. Rosenthal was appointed committee in her place. Soon after his appointment, Rosenthal filed a petition in the Superior Court of Baltimore City, stating that the property of the lunatic consisted of an annuity of $18, some store and dwelling houses in the city, and an un ⁶⁹ improved lot on Linden avenue, Baltimore.

The petition further stated that there was due to the Sisters of Mount Hope, where the lunatic was confined, three hundred dollars, and that there was due for taxes in arrear on the property of the lunatic, upwards of two thousand dollars, and which taxes the collector was threatening to enforce the payment of. He also stated that the lunatic had no money to pay these pressing claims, and prayed that the Court would order a sale of the unimproved lot for the purpose of paying them. The petition was verified by affidavit of the committee, and the tax bills and a letter from the collector were made exhibits. Upon this petition the Court ordered the sale of the lot on Linden avenue, which was duly advertised and sold to Rayner the appellant, and the sale reported to the Court.

The appellant fearing that he might not obtain a good title, excepted to the sale, but the Court ratified it, and Rayner has appealed. The only question presented to us for decision on this appeal, is whether a Court of equity has the rightful power in this case to decree a sale of a part of the real estate of the lunatic to pay these claims, upon the application of his committee, and the presentation of a prima facie case, and without going through the formalities prescribed in the 83rd section of Art. 16, of the Code, or in other words, whether the said 83rd section is applicable to this case ? The 79th section of Art. 16, of the Code, gives to a Court of equity full power and authority to make such orders and decrees respecting the persons and estates of a lunatic as the Court may deem proper. This section is as comprehensive as language can make it, and if it stood alone there could be no question of the power of the Court in all cases, and in any manner to decree a sale.

Subsequent sections of the same Article, however, direct, how and in what manner, this great power shall be exer ⁷⁰ cised in some cases. Certain safe-guards are thrown around the procedure not for the purpose of restricting the jurisdiction of the Court, hut for the purpose of enabling it to act more advisedly. Thus in section 83, it is provided that in cases of application to sell the real or personal property of the lunatic, there shall he his appearance and answer by guardian appointed by the Court, and proof taken as in other Chancery cases, &c., before such sale. By the 86th section of the same Article (16th) it is provided that in all cases where a trustee has been appointed by the Court for the management of the person and estate of the lunatic, the Court may decree a sale of so much of his property as may he necessary for his support or for the payment of all reasonable expenses which said trustee may have incurred.

We hardly think that it was ever contemplated by this 86th section that before the Court could order a sale of any of the property of the lunatic, to pay his reasonable and just expenses, a regular