Knapp v. Knapp

Boetd, C. J., delivered the opinion of the Court. The appellants, heirs at law of Joseph Knapp-, deceased, excep-ted to the ratification of a public sale of leasehold estate by executors of the will of Joseph Knapp-, under -an order of the Orphans’ Court -of Baltimore City; and they specified -as the grounds of exception: (1) that the will under which the executors had been proceeding had been set aside upon a caveat, and therefore the executors had no right or power to proceed in the administration of the estate; (2) that the sale, which was for the payment of debts, was authorized upon a misrepresentation as to the need of ²¹⁹ money from, the sale of real estate for that purpose; (3) that the advertisement of notice of the sale was insufficient; and, (4) that the price brought was grossly inadequate, and, under the circumstances shown, should not be accepted. The first and second grounds have not been pressed in tbe argument on appeal. Tbe docket entries of the ease show that the sale had been made and reported, and these exceptions filed, before the order setting aside the will was passed in the orphans’ court, so that the: executors still had power to act. “The effect of the caveat and the proceedings was not to revoke the probate, or suspend the powers of the executors.

These remain to await the final action of the orphans’ court, after the trial and verdict upon the issues.” Munnikhuysen v. Magraw, 35 Md. 280 ; Pacy v. Cosgrove's Executor, 113 Md. 315, 320 ; Seldner v. McCreery, 75 Md. 295 ; Code of Public General Laws, art. 93, sec. 37. And the evidence taken showed quite clearly that there, were debts and expenses of administration to be paid, and not sufficient funds in tbe estate to pay them. The orphans’ court, acting under its statutory power (Code, P. G. L., art. 93, sec. 290), to “direct the manner and terms of sale” of property to obtain money for payment of debts, ordered that notice of tbis sale be advertised in one of tbe daily newspapers in Baltimore City twice a week for two weeks. Tbis, we a're informed by counsel, is the notice customarily ordered by that court for such sales.

The sale took place on November 6th, 1924, and the notice was published in the Daily Record of Baltimore, where such notices are commonly published, on October 20th, 24th, and 27th and November 1st, 3rd and 6th, 1924, that is to say, six times during eighteen days, or more often and for a longer time than the order of the court required. The appellants object, however, that this advertisement, measured by the statutory or customary length of notice of judicial sales in other proceedings, is too short. And they argue that it should be so measured, because practice under a statutory power so indefinite as that to “direct tbe manner and terms of sale,” is regu ²²⁰ larly conformed by the courts, “upon principles of analogy,” to the practice defined in more specific statutes for similar situations. Statements by this Court in Berrett v. Oliver, 7 G. & J. 191 ; Lowe v. Lowe, 6 Md. 347 ; Edwards v. Bruce, 8 Md. 387, 395 , and elsewhere, are cited in support of the .argument.

And the practice of courts of equity in adopting the period of limitations imposed by courts of law for cases of the same kind, would seem to be an illustration of the conformity by analogy now suggested. See Brantly's note to Chew v. Farmers' Bank, 2 Md. Oh. 231. It is pointed out that publication of notice of sale for at least twenty days has been required in each of several statutes which provide for sales (Code, P. G. L., art. 81, sec. 59; art. 66, sec, 8; art. 23, secs. 200 and 75) ; that in the provision for sales under general power to an executor to sell real estate, article 93, section 299, the notice is expressly required to be “by publication given in the same manner as practiced in cases of sales of lands under decrees in equity”; and that it is the unvarying practice in the equity courts of Baltimore City to have the notice published twice a week for three successive weeks, and in the county courts to give still longer notice. And the conclusion is that the notice given in this case, six times in eighteen days, should, therefore, be held inadequate.

But we consider this to be an argument which could be .addressed only to the orphans’ court itself, in view of the unrestricted discretion given it in the statute. The very omission of a definite time of publication in that one statute would seem rather to proclaim an intention on the part of the Legislature that the orphans’ court should not be subject to the restrictions inserted in the other statutes, but should be left free to follow its own judgment. The present argument is, in effect,